The opinion of the court was delivered by: PARKER
BARRINGTON D. PARKER, District Judge:
On May 16, 1983, plaintiff, Michael Burda, brought suit against the National Association of Postal Supervisors (NAPS), Mutual of Omaha, two current employees of the Office of Personnel Management (OPM) and one former employee of OPM, alleging common-law and constitutional torts. All the defendants, with the exception of Mutual of Omaha,
have filed dispositive motions seeking dismissal of the complaint. NAPS also filed a motion for partial summary judgment on its counterclaims.
For the reasons stated below, the Court finds that all of plaintiff's claims arising before May 16, 1980 are time barred; that the federal defendants are absolutely immune from suit for common-law torts; and that all the constitutional claims are meritless. Because this Memorandum Opinion dismisses all federal claims, plaintiff's remaining claims -- those arising after May 16, 1980, which allege common-law torts against non-federal defendants -- and NAPS' counterclaims are dismissed without prejudice to refiling in an appropriate forum.
The Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U.S.C. §§ 8901-13, created the Federal Employees Health Benefits Program, through which federal employees may purchase health insurance as a fringe benefit of government employment. To implement the program, FEHBA authorizes OPM to enter into contracts with nongovernmental entities called "carriers," which, under a variety of health benefits plans, provide or reimburse the cost of health services in exchange for premiums paid for in part by the employee and in part by the government. § 8902(a). See §§ 8901(7); 8906. Section 8902(i) requires that rates charged by a carrier for a health benefits plan "necessarily and equitably reflect the cost of the benefits provided." To enable OPM to insure the reasonableness of the rates charged, carriers must permit OPM to examine their records. § 8910.
NAPS, a labor organization, is a carrier under contract with OPM, offering a health benefits plan to its members. According to the averments of the complaint (fiercely controverted by the defendants), defendant Thomas Tinsley, then Assistant Director (Benefits Policy) of OPM,
suggested in 1978 to plaintiff that plaintiff become administrator for NAPS' health benefits plan. Tinsley, intending to "feather his own nest" upon his imminent departure from OPM, indicated to plaintiff that the program would be "a piece of cake," and one of "instant profitability." Burda subsequently, on April 24, 1979, entered into a three-year contract with NAPS. That contract provided that NAPS would pay plaintiff the "actual and common and reasonable charges incurred . . . with appropriate justification and accounting support, and subject to audit by [OPM]." It further provided that NAPS would not be liable to Burda for any expenses "disallowed by OPM." Plaintiff alleges that in reality NAPS and Tinsley were conspiring to have Burda expend funds and effort to implement the plan, and were then planning to jettison him and "blow Burda out" of his contractual rights.
In June 1979, Tinsley retired from federal service, and in the fall of 1979 began part-time consulting work for plaintiff. At that point, the complaint alleges that Tinsley, NAPS, defendant Mutual of Omaha, and defendant George MacWhorter (at that time Chief, Employee Organization Plans Division, Office of Insurance Programs, OPM; currently Deputy Assistant Director, Office of Insurance Programs),
conspired to wrongfully disallow plaintiff reimbursement for funds he had expended to implement the plan both before and after the execution of his contract with NAPS.
In April 1980, an audit of plaintiff's pre-contract expenditure of funds was conducted by an allegedly incompetent auditor who, according to plaintiff, was intentionally hired by Tinsley in an effort to subvert plaintiff's position. As a result of the audit, OPM disallowed a portion of the money claimed by plaintiff. Plaintiff, "exhausted from the emotional, mental and financial pressures applied" by the defendants, resigned in 1981 from his position as plan administrator. However, plaintiff still had some outstanding claims for reimbursement so a second audit was conducted in 1982, and again as a result OPM disallowed a portion of plaintiff's claim for reimbursement. Plaintiff alleges that as a result of OPM's wrongful disallowances, $ 62,229.58 of his expenditures went unreimbursed. Plaintiff also alleges that MacWhorter and another defendant, George Bower (MacWhorter's replacement as Chief, Employee Organization Plans Division, Office of Insurance Programs, OPM), engaged in ex parte meetings with NAPS for the purpose of denying plaintiff an opportunity to present his position regarding the second audit's results. Burda now seeks $ 62,229.58 and punitive damages for fraud, conspiracy, tortious interference with a contractual relationship, violation of the Fourth, Fifth and Sixth Amendments, and intentional infliction of emotional distress.
NAPS, in its counterclaims, alleges breach of contract, conversion, failure to repay money owed, fraud, and breach of fiduciary duty. NAPS seeks $ 48,352 for funds that it advanced to plaintiff but which were later disallowed by OPM, $ 2,317.54 for a debt of plaintiff's which NAPS discharged, and punitive damages.
A. Statute of Limitations
All of plaintiff's causes of action are subject to the three-year statute of limitations set forth in D.C. Code § 12-301(8). See Lawrence v. Acree, 215 U.S. App. D.C. 16, 665 F.2d 1319, 1323 n.5 (D.C. Cir. 1981). Plaintiff filed the complaint on May 16, 1983; consequently all causes of action arising prior to May 16, 1980, are time-barred, absent fraudulent concealment by defendants. See Smith v. Nixon, 196 U.S. App. D.C. 276, 606 F.2d 1183, 1190 (D.C. Cir. 1979); Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977). In a case of fraudulent concealment, the statute of limitations does not begin to run until plaintiff discovers, or by reasonable diligence could have discovered, the basis of his lawsuit. Smith v. Nixon, 606 F.2d at 1190, quoting Fitzgerald v. Seamans, 553 F.2d at 228.
Plaintiff, while acknowledging the three year period, filed his own affidavit on October 25, 1983, in support of his contention that defendants fraudulently concealed from plaintiff the basis of the lawsuit. But in that affidavit plaintiff presents little more than the bare allegation that he first discovered the existence of his causes of action in 1981 as a result of unspecified litigation filed against him in the Superior Court of the District of Columbia. Burda's conclusory affidavit is insufficient to establish any fraudulent concealment by defendants. He fails to set forth any of the facts that he supposedly learned in 1981, and why he could not have discovered them any earlier through due diligence.
Furthermore, plaintiff's own complaint alleges facts which show that had he exercised due diligence he should have discovered the alleged conspiracy before May 16, 1980. For example, in late 1978 Tinsley allegedly assured plaintiff that the health plan would be a "piece of cake" and one of "instant profitability." But certainly by April 1980, when major portions of plaintiff's claims for reimbursement were disallowed as a result of the first audit, he should have realized that Tinsley's assurance was false. Indeed, Burda's own complaint stresses the importance of the first audit as a key component of defendant's conspiracy: "This sham audit and MacWhorter's role in delivering it were all part of the a priori conspiracy between NAPS, Tinsley, OPM through MacWhorter, and Mutual of Omaha to sever Burda from his contractual rights." Complaint para. 36. Thus, assuming without deciding that Tinsley's assurances could serve as the basis for plaintiff's claims, he should have been aware of the patent falsity of those assurances at least by April 1980.
A second example, again culled from plaintiff's complaint, illustrates that he should have suspected wrongdoing even earlier. In ...