April 25, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Cornelius J. Sullivan and Sullivan & Walsh on brief for
appellant.
Donald K. Stern, United States Attorney, David S. Mackey,
Assistant United States Attorney, and Anne M. Gallaudet, Attorney,
United States Postal Service, Law Department, on brief for appellees.
Per Curiam. Plaintiff appeals the dismissal of
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
of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Defendants respond that the claims are preempted by the Civil
Service Reform Act ("CSRA"), and barred by res judicata and
the Federal Tort Claims Act.
Applying a de novo standard of review, we are
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
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,
423, 427-28 (1988); Bush v. Lucas, 462 U.S. 367, 387-88
(1983). The exclusivity of the remedy generally bars both
Bivens claims as well as state law claims for damages. See
Roth v. United States, 952 F.2d 611, 614-16 (1st Cir. 1991);
Saul v. United States, 928 F.2d 829, 835-43 (9th Cir. 1991);
Berrios v. Department of Army, 884 F.2d 28, 30-32 (1st Cir.
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
(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.
-3-