Desmond v. Dept. of Defense ( 1993 )

March 19, 1993 [NOT FOR PUBLICATION]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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