Harvey v. US PO ( 1995 )

USCA1 Opinion

          April 25, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT





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        No. 94-1729

                                  ROBERT J. HARVEY,

                                Plaintiff, Appellant,

                                          v.

                        UNITED STATES POSTAL SERVICE, ET AL.,

                                Defendants, Appellees.



                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                        FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
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                                 ____________________

                                        Before

                                Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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            Cornelius   J.  Sullivan  and  Sullivan  &  Walsh   on  brief  for
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        appellant.
            Donald  K.  Stern,  United  States  Attorney,  David  S.   Mackey,
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        Assistant  United States  Attorney, and  Anne M.  Gallaudet, Attorney,
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        United States Postal Service, Law Department, on brief for appellees.


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                      Per Curiam.     Plaintiff appeals the  dismissal of
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            the  complaint for failure to state a claim upon which relief

            can  be granted.  The case grows out of plaintiff's discharge

            from  the United  States Postal  Service.   He unsuccessfully

            challenged his  discharge before the Merit Systems Protection

            Board and  appealed to  the Federal Circuit,  which affirmed.

            The  Supreme  Court  denied   his  petition  for  certiorari.

            Plaintiff  now attempts  to  assert tort  claims for  damages

            based on the same alleged violations of his Fourth Amendment,

            privacy and due process  rights which he argued  before those

            tribunals.   See generally Bivens v. Six Unknown Named Agents
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            of  the  Fed.  Bureau  of Narcotics,  403  U.S.  388  (1971).
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            Defendants respond that the claims are preempted by the Civil

            Service Reform Act  ("CSRA"), and barred by  res judicata and
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            the Federal Tort Claims Act.

                      Applying  a  de novo  standard  of  review, we  are
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            skeptical  that   the  complaint  states   any  violation  of

            plaintiff's   constitutional  rights.      Even  assuming   a

            constitutional issue, however, the complaint does not present

            a proper  case for a Bivens or state tort remedy.  The CSRA's
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            comprehensive  scheme is  designed to  provide the  exclusive

            remedy for most government employee  complaints of prohibited

            personnel practices.   Schweiker  v. Chilicky, 487  U.S. 412,
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            423,  427-28 (1988);  Bush  v. Lucas,  462  U.S. 367,  387-88
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            (1983).  The  exclusivity of the  remedy generally bars  both



















            Bivens  claims as well as state  law claims for damages.  See
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            Roth  v. United States, 952 F.2d 611, 614-16 (1st Cir. 1991);
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            Saul  v. United States, 928 F.2d 829, 835-43 (9th Cir. 1991);
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            Berrios v. Department of  Army, 884 F.2d 28, 30-32  (1st Cir.
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            1989). 

                      Plaintiff  offers no  reasoned argument  or support

            for his singular assertion that the CSRA's elaborate remedial

            system  should not bar  this suit  because it  "sanctions the

            wrongful  conduct  of  the  agency  and  allows  the  blatant

            violation of Mr.  Harvey's rights."   Appellant's  Br. at  7.

            Finding   no  substantial   question  presented  as   to  the

            preemptive  effect of the CSRA,  we need not  reach the other

            issues.   See Resare v. Raytheon Co., 981 F.2d 32, 44-45 n.30
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            (1st Cir.  1992) (a court of appeals is free to affirm on any

            ground  supported in  the record  even if  the issue  was not

            tried below).

                      Affirmed.  See Loc. R. 27.1.
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