Vessella v. Dept. of Airforce ( 1993 )

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[NOT FOR PUBLICATION]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
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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
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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
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(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
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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.
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