Desmond v. Dept. of Defense

• Court: Court of Appeals for the First Circuit
• Decided: March 19, 1993
• Docket: 92-2201
• Status: Published

Opinion

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March 19, 1993        [NOT FOR PUBLICATION]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.  

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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

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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

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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. 

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"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

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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
                                             ___________    ________

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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

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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).  

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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

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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. 
            _________

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