USCA1 Opinion

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[NOT FOR PUBLICATION]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
___________________
Conner, Assistant U.S. Attorney, on brief for appellee
______

Cheryl L.
_________

__________________
__________________

Per Curiam.
__________
Department
grant of
under

of the

Plaintiff,

Air Force,

a former employee

appeals the

summary judgment dismissing

the

Privacy

plaintiff's

Act.

complaint

The
was

district court's

his complaint

district
barred

of the

court

because

brought

held
it

that
was

"transparent attempt" to collaterally attack the result of an

earlier proceeding brought under the Civil Service Reform Act
("CSRA").

Alternatively, the

allegations failed

court held

to set forth claims

that plaintiff's

cognizable under the

Privacy Act.
Since

we

agree with

the

district court's

first

ground
for decision,
sufficiency
summarize

we have

no

the

claims

of
below

only

need to

separately consider

under

the

the

Privacy

record facts

Act.

necessary

the
We

to

our

an investigation

and

opinion.
The dispute
report

by the

Air

here began with

Force Office

of Special

Investigations

("AFOSI") regarding certain allegedly improper claims made by

plaintiff for reimbursement of travel expenses.
contents

of

plaintiff a

the

AFOSI

report, the

Air

"Notice of Proposed Removal."

help from his union.

After a meeting with

Based on the

Force

issued

to

Plaintiff sought
plaintiff and his

union representative, the Air Force Deciding Official instead

determined, on

July 19,

1989, to

suspend plaintiff for

14

-3-

days and demote

him one grade.

from the agency's actions,

Plaintiff filed

grievances

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

demote him, plaintiff filed an appeal from the

the

Merit

Systems

Protection

Board

suspend and
decision with

("MSPB").

The

Administrative Judge ("AJ") initially issued an order to show

cause

why the

appeal should

jurisdiction since
negotiated
5

not be

dismissed for

ordinarily an employee's choice

lack of
to use a

grievance process ousts the MSPB of jurisdiction.

U.S.C.

4303,

prevailed

on the

which

showed

after,

the

been filed

7512.

jurisdictional issue,

that his
critical

suspension decision.
plaintiff's

7121(e),

grievances
effective

date of

within the 20

be dismissed

plaintiff

producing documents

were

Nonetheless, the

appeal should

However,

filed before,

not

the

and

AJ

demotion
concluded

because it

day regulatory filing

that

had not

period, and

plaintiff's evidence failed to demonstrate good cause for the

delay.

Vessella
________

v. Department of the Air Force, MSPB

_____________________________

BNO7529010127, Initial Dec. at

full

Board

Vessella
________
1401.

affirmed

the

2, 3-5 (June 14, 1990).

dismissal on

October

v. Department of the Air Force,

_____________________________
Plaintiff

dismissal

within

was notified
30 days

to

-4-

of his

The

10,

1990.

1990 MSPB

LEXIS

right to

the Federal

No.

appeal the

Circuit

under 5

U.S.C.
the

7703(b)(1).

Instead of taking a direct appeal to

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

circulation,
the

AFOSI

favorable

agency's

allegedly

and action upon

investigation;

document

for

maintenance,

inaccurate documents involving

the
a

improper

alleged

period of

withholding
time;

of

discussion

a
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

reinstatement to his former position,

another

office, and correction

MSPB,

including

backpay, employment in

of inaccuracies, in addition

to compensation for unspecified injury to his reputation.

The Privacy
correction of
and
used,

other

an agency's

relief in

however,

scheme provided

Act

to

permits

an

individual

inaccurate or incomplete

defined circumstances.
frustrate the

by the CSRA for

exclusive,

to

seek

records

It cannot

be

comprehensive

federal employee challenges

to adverse agency personnel decisions.

See 5 U.S.C.
___

2301,

2302,
335,

7512, 7513; Kleiman v. Department of Energy, 956 F.2d

_______
_____________________
338 (D.C.

Cir.

1992), aff'g
_____

742

F. Supp.

697,

699

-5-

(D.D.C. 1990);
(D.C.

Hubbard v. U. S. EPA, Adm'r,

_______
_________________

Cir. 1986),

Spagnola
________

809 F.2d

1, 5

aff'd in part on other grounds sub nom

_________________________________________

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

claims

as

challenge

untimely,
the

Federal Circuit.
action
attempts

as

he

dismissal
5

a Privacy

U.S.C.
Act

was afforded
through

the

a direct

7703(b)(1).
claim

opportunity
appeal

to

his
to
the

By

restyling his

instead, he

impermissibly

to bypass the CSRA's regulatory scheme.

As we have

observed in related contexts, "the history and intent of

the

CSRA

plainly

jurisdiction

prefigures
would

management and
process."

impede

greater

collateral

the

district

ideals of

uniformity in

fast,

the

court

efficient

judicial

review

Roth v. United States, 952 F.2d 611, 615 (1st Cir.

____
_____________

1991) (quoting
28,

that

Berrios v. Department of the Army,

_______
_______________________

31-32 (1st

remedial scheme

Cir. 1989))

(holding that

884 F.2d

CSRA's exclusive

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
the

for appointed

record.

counsel and alleged

misreadings of

Appointment of counsel in civil cases is within

-6-

the broad discretion

Moran, 949
_____
here.

of the district

F.2d 15, 24

Having reviewed

(1st Cir.
the record

court.

1991).

We

de novo,
__ ____

Desrosiers
__________
see no
as we

v.

abuse
must on

summary judgment, we find

and

fairly

that the district court thoroughly

characterized the

facts.

plaintiff's remaining contentions.

Affirmed.
________

-7-

We

see no

merit in