IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _____________________________

No. 92-2580 (Summary Calendar) _____________________________

WILLIAM JUSTIN DELEONARDIS,

Plaintiff-Appellant,

versus

MARY WEISEMAN, Special Counsel, Office of The Special Counsel, ET AL.,

Defendants-Appellees.

_________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CA-H-90-3768) _________________________________________________

(January 12, 1993)

Before KING, DAVIS, and WIENER, Circuit Judges.

PER CURIAM*:

In this handicap discrimination case, Plaintiff-Appellant

William Justin DeLeonardis appeals the grant of summary judgement

in favor of Defendants-Appellees Mary Weiseman,1 Special Counsel

for the Office of The Special Counsel (OSC), et al. Finding no

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. 1 We note that Kathleen Day Koch was substituted as a party for Ms. Weiseman in the district court. The filings with this court, however, represent Ms. Weiseman as the proper party. reversible error in the district court's grant of summary judgment,

we affirm.

I

FACTS AND PROCEEDINGS

In January 1986, DeLeonardis became a Supervisory Attorney

Advisor in the Houston, Texas, office of the Social Security

Administration (SSA). He served in that capacity for over four

years, receiving several outstanding service awards and earning the

high regard of most of his superiors.2 In June 1990, DeLeonardis

was demoted to the position of Attorney-Advisor, with a

commensurate reduction in his pay level.3

The circumstances of DeLeonardis demotion have been the

subject of this and another lawsuit, as well as several

administrative actions. Our reading of the controlling law as to

our review of this case leads us to conclude that a full

explication of the details of DeLeonardis's demotion is not

necessary. Essentially, DeLeonardis asserts that his demotion and

the subsequent poor working environment that he was forced to abide

resulted from the homophobic reaction of one of his superiors

(Regional Chief Administrative Law Judge Richard Mueller) to the

revelation that DeLeonardis is homosexual and had written (under a

pen-name while off-duty) a story for a magazine for gay men. He

2 The record contains affidavits of praise from at least five of the Administrative Law Judges with whom DeLeonardis served. 3 DeLeonardis was moved from a GM-13 level to a GM-11 level.

2 asserts that the demotion violated his first amendment speech and

association rights. He also alleges discrimination based on his

handicapped status; he has cerebral palsy. Disagreeing, the SSA

asserts that the demotion occurred because DeLeonardis mishandled

the supervision of an errant employee.

As an employee of the SSA, DeLeonardis had no right to appeal

his demotion to the Merit System Protection Board (MSPB) after his

grievance was denied by the SSA itself. He was, however, entitled

to petition the OSC to investigate his claim of a prohibited

personnel practice,4 which he did. The OSC performed an initial

investigation into the circumstances of the demotion but decided

not to conduct a full investigation.

At the same time that he was trying to get the OSC to

investigate of his demotion, DeLeonardis continued his efforts to

regain his position as a supervisor by means within the SSA. These

efforts eventually produced a settlement agreement with the SSA,

which was entered into in October 1991. In accordance with the

agreement, the SSA changed the demotion to a "voluntary change to

a lower grade," adjusted his pay to the level at which he had been

compensated prior to the demotion, purged his personnel file of all

documentation pertaining to the demotion, and made several personal

accommodations for DeLeonardis. The agreement also contained a

reservation clause in which DeLeonardis expressly reserved the

right to continue the instant litigation.

DeLeonardis had filed the instant action in an attempt to

4

, 23 (1988).

3 compel the OSC to perform a full investigation of the complaint he

had filed with that agency concerning his demotion. The district

court granted summary judgment in favor of the OSC, holding that

the decision of the OSC not to perform a full investigation after

it had performed a preliminary investigation was unreviewable.

DeLeonardis timely appealed the order of the district court.

II

ANALYSIS

The OSC must "investigate the allegation [of a prohibited

personnel practice] to the extent necessary to determine whether

there are reasonable grounds to believe that a prohibited personnel

practice has occurred, exists, or is to be taken," and bring

correct action "whe[n] appropriate."5 In Wren v. Merit System

Protection Board, the D.C. Circuit stated:

[W]hile the scope of an initial OSC investigation need only be extensive enough to determine whether there are reasonable grounds to believe a prohibited personnel practice is occurring, has occurred, or will occur, "[s]ome preliminary inquiry will . . . be necessary . . . to determine whether the charge warrants a thorough inquiry."6

Once the OSC has conducted its initial inquiry, however, the Wren

court continued, "it is . . . quite clear from the statutory

language and legislative history that Congress did not mean to make

5

§§ 1212(a)(2), 1214(a)(1)(A). 6

(D.C. Cir. 1982)(quoting II House Comm. on the Post Office and Civil Service, 95th Cong., 1st Sess., Legislative History of the Civil Service Reform Act of 1978, at 1496).

4 the OSC's decisions to terminate or conduct an investigation or

bring a proceeding before the Board reviewable on the merits."7

We have recognized and approved the Wren court's reasoning

that an employee's right to obtain judicial review of the OSC's

decision not to pursue a complaint is "limited to [the question of]

whether the OSC discharged its duty to investigate the complaint."8

We agree with our colleagues of the D.C. Circuit that when the OSC

decides to terminate an investigation that it began pursuant to a

complaint, the decision is not reviewable.

The district court correctly stated the law applicable to the

facts of the instant case:

In this case the OSC conducted a preliminary investigation of plaintiff's allegations, referred his handicap discrimination to the EEOC, and concluded that further inquiry was unnecessary because the evidence did not indicate that prohibited personal practices had occurred. Plaintiff does not contend that OSC failed to investigate his complaint; he contends that the investigation was inadequate. Under these facts the court cannot order OSC to conduct an additional investigation of plaintiff's claims, nor will the court second guess OSC's decisions to abandon or defer claims following its preliminary investigation.

DeLeonardis nevertheless insists that courts are allowed to

look behind the agency's decision to terminate an investigation

when, as he claims it did here, the agency applies the incorrect

7 Id. at 875 n.9 (citing Senate Comm. on Governmental Affairs, 95th Cong., 2d Sess., Markup Sess. on S.2640 (Civil Service Reform Act of 1978), at 85-86 (unpublished transcript of May 22, 1978); House Comm. on Post Office and Civil Service, 95th Cong., 2d Sess., Markup Meetings on H.R. 11280 (A Bill to Reform the Civil Service Laws), at 46-47 (Comm. Print 1978)). 8 Towers v. Horner,

, 1246 n.14 (5th Cir. 1986)(citing Wren,

n.9).

5 legal standard in deciding to terminate the investigation.9 But

DeLeonardis fails to recognize, or at least to admit, that to allow

him to succeed on this argument we would have to vitiate the

clearly established rule that we do not look behind substantive OSC

determinations to terminate investigations. We are neither willing

nor authorized to do so.

The OSC is also correct in asserting that DeLeonardis's appeal

has been mooted by the settlement agreement that he entered into

with the SSA. The OSC's argument is straight-forward and

unassailable. It points out that there would be nothing for the

OSC to investigate if it were ordered to reopen DeLeonardis's case.

This is so, it notes, as a result of the expunging of all records

of the demotion pursuant to the provisions of the settlement

agreement. We agree that the effect of the plain language of that

9 DeLeonardis asserts that in terminating the investigation, the OSC improperly presumed a nexus between his off-duty activities and his on-duty performance. In its letter informing him of the termination of the investigation, the OSC stated: When you attempted to take action against [an] employee [whom you had allowed to obtain information about your lifestyle and writing], the employee used this information as an affirmative defense. While your action against the employee was ultimately sustained by higher management, the agency did have to spend resources and time reviewing the allegations the employee made against you. Thus, your conduct off-duty did have an adverse impact on the agency, and we find no further basis for inquiry into your allegations of a violation of

(b)(10). (Emphasis added). Although we agree with DeLeonardis that the nexus recognized by the OSC was improper (the fact that the agency had to expend resources and time investigating specious claims)) that arose because of his off-duty lifestyle and activities))of one of DeLeonardis's subordinates cannot be used as a nexus in this situation), forcing the OSC to conduct the investigation because of this error would be a reversal of the agency's discretion on substantive grounds.

6 agreement was the deletion from DeLeonardis's file of all data that

the OSC might investigate.

DeLeonardis urges that the OSC's argument is no more than an

attempt to use the settlement agreement, to which the OSC was not

a party, to "shirk its statutory duty to protect Appellant's

constitutional rights." Continuing, he asserts that "the

settlement of his discrimination claim for less than full

reinstatement with back pay at the GM-13 level does not moot his

constitutional claims for full reinstatement with back pay." The

fatal problem with his argument is that he asks us to require the

OSC to do something that he has rendered it unable to

do))investigate an incident that he has contracted to have expunged

from the SSA's files. Although it is clear that DeLeonardis has

not been made whole by the settlement))he is no longer a supervisor

with the SSA))he seeks in this lawsuit to compel an agency to do

something that he has made impossible.

III

CONCLUSION

Although the record in this case demonstrates rather serious

unfairness in the demotion of DeLeonardis, it is a wrong that is

beyond the authority of this court to redress. We cannot review

the substantive decision of the OSC to discontinue an investigation

for lack of cause once it has commenced one in response to an

employee's request. We also note in passing that even if we were

to compel the OSC to reinstate and perform a full investigation, it

7 would be placed in the impossible situation of reviewing a record

expunged of any evidence of the potential wrongdoing. The district

court's grant of summary judgment is

AFFIRMED.

8