March 19, 1993        [NOT FOR PUBLICATION]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-
