           United States Court of Appeals
                       For the First Circuit

No. 05-1205

                         IVAN E. IRIZARRY,

                       Plaintiff, Appellant,

                                 v.

           UNITED STATES; U.S. SMALL BUSINESS ADMINISTRATION;
         HECTOR V. BARRETO, Administrator, U.S. Small Business
    Administration; MONIKA EDWARDS HARRISON, Chief Human Capital
  Officer, U.S. Small Business Administration; MARY ANNE GLADDEN,
       Deputy Chief Human Capital Officer, U.S. Small Business
 Administration; JOHN D. WHITMORE, Counselor to the Administrator,
        U.S. Small Business Administration; MICHAEL J. PAPPAS,
Regional Administrator, Region II and Associate Administrator for
        Field Operations, U.S. Small Business Administration;
                      JOHN DOES 1-5; JANE DOES 1-5

                       Defendants, Appellees.


            APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                               Before

                   Lipez, Howard, Circuit Judges,

                        and Restani,* Judge.



     Celina Romany, with whom Rafael M. Arrillaga Romany and
Celina Romany Law Offices, were on brief, for appellant.


     *
      Chief Judge of the United States Court of International
Trade, sitting by designation.
     Gary Fox, Assistant General Counsel, United States Small
Business Administration, with whom H.S. García, United States
Attorney, Miguel A. Fernández, Assistant United States Attorney
and Isabel Munoz-Acosta, Assistant United States Attorney, were
on brief, for appellee.



                        October 21, 2005
          HOWARD, Circuit Judge.       Ivan E. Irizarry, an employee of

the United States Small Business Administration (SBA), sued his

employer and several SBA employees         (collectively, the government)

to challenge his transfer from Puerto Rico to Illinois as being

unconstitutionally motivated by his political affiliation with the

Democratic   Party.      The    district   dismissed   the    complaint   and

Irizarry appeals.      We affirm.

          We review the dismissal order de novo.               See Roth v.

United States, 952 F.2d 611, 613 (1st Cir. 1991).            In so doing, we

accept the well-pleaded facts as true and draw all inferences in

favor of Irizarry.      See In re Colonial Mortg. Bankers Corp., 324

F.3d 12, 15 (1st Cir. 2003).        We will affirm the dismissal of the

complaint only if the well-pleaded facts fail to establish the

government's liability under some actionable legal theory.                See

Rodi v. S. New England Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004).

          Prior to the 2000 presidential election, Irizarry worked

as the Director of the SBA for Puerto Rico and the United States

Virgin Islands.       In this position, Irizarry was covered by the

Civil Service Reform Act of 1978 (CRSA), Pub. L. 95-454 (codified

in various provisions of Title 5 of the United States Code).

          After   the    2000    election,    prominent   members   of    the

Republican Party in Puerto Rico began to pressure senior officials

in the new administration to install Republicans as the heads of

the local offices of federal agencies.             As a result of this


                                     -2-
pressure,      the   SBA   reassigned   Irizarry   to     the    post   of   Deputy

District Director for the District of Illinois.                 This transfer did

not change Irizarry's grade or pay.

               Believing that the transfer violated his constitutional

rights to free speech, free association, and due process, Irizarry

filed suit in federal district court in Puerto Rico.                    He sought

review of the action under the Administrative Procedures Act, 5

U.S.C.    §§    701-706,    damages,    see   Bivens    v.    Six   Unknown   Fed.

Narcotics Agents, 403 U.S. 388 (1971), and equitable relief in the

form of reinstatement to his prior position.                 Before filing suit,

Irizarry did not file an administrative complaint before the Office

of Special Counsel (OSC) of the Merit System Protection Board

(MSPB).

               The   government   moved   to    dismiss       the   complaint   on

alternate grounds: (1) Irizarry failed to file the administrative

complaint that Congress intended as the exclusive means by which

unconstitutionally transferred civil servants can obtain relief;

(2) even if filing an administrative complaint is not the only way

to obtain relief, it is a prerequisite to suing in federal court.

The district court accepted the government's first argument, ruling

that the CSRA precluded Irizarry from initiating a court action

because he was limited to the remedies provided by the CSRA.                    We

do not reach this issue because we agree with the government's

alternate argument:         that Irizarry was required, but failed, to


                                        -3-
exhaust       his    administrative        remedies.          See,     e.g.,     Crellin

Technologies v. Equipmentlease Corp., 18 F.3d 1, 13 (1st Cir. 1994)

(appeals court may affirm the dismissal of a complaint on any

independently sufficient ground).

              Congress      passed   the    CSRA     to    "replace    the     haphazard

arrangements for administrative and judicial review of personnel

action" for civil service employees "with an integrated scheme of

administrative        and    judicial      review,    designed       to    balance     the

legitimate interests of various categories of federal employees

with the needs of sound and efficient administration."                              United

States v. Fausto, 484 U.S. 439, 444-45 (1988).                   The CSRA provides

remedies for prohibited personnel actions by federal agencies, 5

U.S.C.    §    2302(a)(1),      which      include        employment      actions    that

contravene      an    employee's      constitutional          rights,      see   id.     §

2301(b)(2).         Under the facts alleged by Irizarry, his transfer

could qualify.       See Rutan v. Republican Party of Ill., 497 U.S. 62,

73-74 (1990) (holding that a transfer of a public employee on

account of political affiliation can violate the First Amendment).

              The CSRA provides different remedial schemes depending on

the severity of the personnel action at issue.                            For the most

drastic actions, such as discharge, an employee is entitled to

appeal the agency's decision directly to the MSPB.                           5 U.S.C. §

7513(d).      If the employee does not prevail before the MSPB, she may




                                           -4-
seek judicial review in the United States Court of Appeals for the

Federal Circuit.    Id. § 7703.

          An employee may not challenge a transfer by means of a

direct   appeal    to    the   MSPB.         Instead,    she   must   file   an

administrative complaint with the OSC. See 5 U.S.C. §§ 1212(a)(2),

1214(a)(1)(A), 2302(a)(2)(A)(iv).            The OSC must "investigate . . .

to the extent necessary to determine whether there are reasonable

grounds to believe that a prohibited personnel action has occurred,

exists, or is to be taken."            Id. § 1214(a)(1)(A).       If the OSC

determines that such grounds exist, it may request that the agency

rescind the action and, if the agency declines, petition the MSPB

to take appropriate remedial steps.           See id. §§ 1214(b)(2)(B),(C).

The OSC is generally required to act on an administrative complaint

within 240 days.        See id. § 1214(b)(2)(A).        If the OSC terminates

the investigation because it does not find reasonable grounds to

conclude that a prohibited personnel action has or will occur, the

OSC must tell the complaining employee the reason for its action.

See id. § 1214(a)(2)(A).

          The CSRA does not provide for review by the MSPB or an

Article III court of an OSC decision to terminate an investigation

into an employee's complaint.1          The government argues that this


     2
      The CSRA contains an exception, not applicable here, which
allows an employee to appeal to the MSPB (and eventually to the
Federal Circuit) from the OSC's decision to terminate an
investigation into a whistleblower claim.      See 5 U.S.C. §§
1214(a)(3), 2302(b)(8).

                                       -5-
congressional silence indicates that the OSC procedure is the

exclusive avenue to relief.          Irizarry counters that, because the

OSC's decision to intervene is discretionary, the CSRA does not

provide an adequate remedy to vindicate constitutional rights.

Therefore,    Irizarry    contends    he    may   sue   in   federal   court   to

vindicate his constitutional claim.           We assume arguendo that some

form of Article III review is available to Irizarry, even though it

is not expressly provided for by the CSRA.              Cf. Dugan v. Ramsay,

727   F.2d   192,   194-95   (1st    Cir.   1984)   (federal    civil   servant

applicant held entitled to obtain review of a personnel decision in

federal court because, under the CSRA, the claim could not find its

way to the MSPB).2       Nevertheless, as we will explain, Irizarry's


      2
      Because we affirm on other grounds, we do not address the
government's contention that Dugan is so out-of-step with recent
Supreme Court precedent that it is no longer good law. We do note,
however, that Dugan was decided several years before the Court
recognized the preclusive effect of the CSRA in Fausto, 484 U.S. at
455. We note also that several (although not all) of our sister
circuits have concluded that the CSRA precludes federal lawsuits
filed after the OSC has declined to act on an employee's claim.
Compare Saul v. United States, 928 F.2d 829, 835-843 (9th Cir.
1991) (barring action); Lombardi v. Small Business Admin., 889 F.2d
959, 961(10th Cir. 1989)(same); Pinar v. Dole, 747 F.2d 899, 910-
911 (4th Cir. 1984) (same) with Mitchum v. Hurt, 73 F.3d 30, 35 (3d
Cir. 1995) (allowing federal court action by federal employee to
obtain injunctive relief); Spagnola v. Mathis, 859 F.2d 223, 229
(D.C. Cir. 1988) (en banc) (per curiam) (same).
     While we do not decide whether Dugan remains good law, we do
reject the government's assertion that we effectively overruled
Dugan in Berrios v. Dep't of the Army, 884 F.2d 28 (1st Cir. 1989).
In Berrios, we held that the plaintiff could not sue over his
discharge because the CSRA provided his exclusive remedy and did
not include a direct action in federal district court. Id. at 31.
Berrios is distinguishable because, unlike here, the CSRA provided
that the plaintiff could obtain review of his discharge at the

                                      -6-
complaint was properly dismissed because he did not exhaust his

remedies by first filing a complaint with the OSC.3

            Requiring exhaustion of administrative remedies serves

important purposes.      See McCarthy v. Madigan, 503 U.S. 140, 144

(1992).   It protects administrative agency authority and promotes

judicial efficiency.     See id.; see also Portela-Gonzalez v. Sec'y

of the Navy, 109 F.3d 74, 77 (1st Cir. 1997).                It also prevents

litigants   from    bypassing   Congress'     carefully      crafted   remedial

scheme.     See Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C. Cir.

1984).

            These   policy    goals,    and   the    lack   of   countervailing

interests, favor requiring a federal employee to file a claim with

the OSC before repairing to federal court.             "The CSRA established

a   comprehensive    system    for   reviewing      personnel    actions   taken

against federal employees."          Fausto, 484 U.S. at 455.        Permitting

an employee to bypass the OSC entirely would permit the employee to

avoid the remedial scheme that Congress enacted, even though


Federal Circuit.     See id.
      3
      We reject Irizarry's contention that we took a contrary
position in Dugan, 727 F.2d at 194. In Dugan, the plaintiff filed
suit in federal district court without first filing a claim with
the OSC.   Id.   The district court, sua sponte, dismissed the
complaint on the ground that the plaintiff had failed to exhaust
administrative remedies. Id. We reversed. Id. In so doing, we
relied on the government's concession that the plaintiff did not
have to file a claim with the OSC as a prerequisite to filing a
suit in federal court.    Id.   In light of this concession, we
concluded that the government had waived its entitlement to raise
the administrative exhaustion bar. Id. Not so here.

                                       -7-
nothing in the CSRA suggests that Congress intended resort to the

OCS to be optional.    Cf. Velazquez-Rivera v. Danzig, 234 F.3d 790,

794 (1st Cir. 2000) (ruling that plaintiff forfeited any federal

court review of his termination by not following the procedures set

forth in the CSRA).    By contrast, requiring exhaustion permits the

federal agency to correct the violation or to explain its decision.

This promotes agency authority and accountability.        See Martin v.

United States Env. Protection Agency, 271 F. Supp. 2d 38, 45

(D.D.C. 2000).     Moreover, the OSC remedy provides a method for

resolving   many   employment   disputes   without   turning   them   into

federal cases. This reduces the caseload of the federal courts and

relieves the courts from serving as "super personnel boards."

DiPrio v. Taft, 584 F.2d 1, 3 (1st Cir. 1978).4

            Irizarry argues that he should have been excused from

complaining to the OSC because the OSC has discretion whether to

act on his administrative complaint and need not address the

merits.   The D.C. Circuit rejected this same argument:




     4
      Several courts, which may permit an employee in Irizarry's
position to sue in federal court, require administrative
exhaustion.   See Weaver v. United States Info. Agency, 87 F.3d
1429, 1433-34 (D.C. Cir. 1996) (dismissing the plaintiff's claim
that an oral admonishment violated his right to free speech because
the plaintiff did not first file the claim with the OSC); see also
Martin, 271 F. Supp. 2d at 45 (dismissing suit for failure to
exhaust OSC remedy); United States v. Perdeaux, 33 F. Supp. 2d 187,
190 (E.D.N.Y. 1999) (similar).    But see Mitchum, 73 F.3d at 35
(permitting federal employee to pursue claim for injunctive relief
without exhausting administrative remedies).

                                  -8-
            Although the OSC discretion adds an
            element of uncertainty that is distinct
            from the ordinary vicissitudes of agency
            proceedings, Congress evidently thought
            it adequate in view of the relatively
            minor character of the wrongs whose
            redress is left to OSC discretion,
            perhaps fearing that a universal right of
            appeal to the MSPB would cause trivial
            claims to delay and crowd out more
            serious ones.

Weaver v. United States Info. Agency, 87 F.3d 1429, 1433-34 (D.C.

Cir. 1996).   This reasoning comports with the Supreme Court's and

this court's decisions mandating that federal employees comply

with the CSRA's remedial procedures. See Fausto, 484 U.S. at 455;

 Velazquez-Rivera, 234 F.3d at 794; Berrios, 884 F.2d at 884.

            A discriminatory transfer of the sort Irizarry allegedly

suffered is not a trivial slight.           But we think it clear that

Congress intended that complaints about such transfers be directed

to the OSC.      If federal court review is available to Irizarry at

all,   it   is     only   available     following   the   exhaustion   of

administrative remedies.

            Affirmed.




                                      -9-
