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BARTEL v. FAA

April 18, 1985

RICHARD C. BARTEL, Plaintiff,
v.
FEDERAL AVIATION ADMINISTRATION, et al., Defendants; RICHARD C. BARTEL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant; RICHARD C. BARTEL, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants



The opinion of the court was delivered by: GREENE

 These three consolidated cases have their genesis in an investigation and subsequent disclosures by defendant Brian Vincent, a Federal Aviation Administration (FAA) supervisory official, to various individuals, to the effect that plaintiff, an FAA air safety inspector, had examined confidential personnel records of several fellow FAA air safety inspectors. Based on these disclosures, and on subsequent employment disputes, *fn1" plaintiff has sued Vincent and other officials, as well as the United States, asserting constitutional and common-law tort claims; claims under the Privacy Act, 5 U.S.C. § 552a; and claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.. *fn2"

 Presently pending before the Court, on remand from the Court of Appeals, *fn3" are three motions. In No. 82-0077, defendant Vincent has moved for dismissal or summary judgment with respect to the claims asserted against him in his individual capacity. *fn4" In No. 83-1250, all the defendants have moved for dismissal or summary judgment on the grounds that venue is lacking as to both plaintiff's Title VII employment discrimination and Federal Tort Claims Act (FTCA) claims, and that his tort claim is barred both by the FTCA and by the applicable statute of limitations. Plaintiff has cross-moved for summary judgment with respect to the Title VII claim. For the reasons stated below, plaintiff's motion will be denied, and defendants' motions will be granted.

 I

 In No. 82-0077, plaintiff seeks damages from Vincent, in his personal capacity, for alleged violations of plaintiff's First, Fourth, Fifth, and Ninth Amendment rights, *fn5" and for common-law defamation. *fn6" None of these claims withstands analysis.

 A. First Amendment

 The precise nature of plaintiff's First Amendment claim is unclear. His pro se complaint alleges generally that Vincent's disclosure of plaintiff's unauthorized examination of other employees' personnel files violated his right to privacy guaranteed by the First Amendment. *fn7" On appeal, plaintiff more specifically argued that the violation occurred as a result of Vincent's investigation and subsequent disclosure of information which assertedly was done in retaliation for plaintiff's attempt "to bring a reverse discrimination E.E.O. complaint." *fn8" Now, in his opposition to Vincent's motion, plaintiff alleges for the first time that the First Amendment right involved is the right to seek information. *fn9" Although Vincent's expressed frustration with "the chameleon-like nature" of plaintiff's claims *fn10" is understandable, the Court is obligated to construe the allegations of the pro se complaint broadly, *fn11" and it will therefore consider each of the theories advanced by plaintiff.

 1. To the extent that plaintiff's First Amendment claim asserts that defendant acted in retaliation for plaintiff's pursuit of a reverse discrimination E.E.O. complaint, it is precluded by the existence of a remedy under Title VII. *fn12" Both the Supreme Court and the Court of Appeals for this Circuit have held that Title VII provides the exclusive remedy for claims of discrimination in federal employment, and that a plaintiff may not circumvent the carefully crafted Title VII remedial scheme by challenging alleged constitutional violations through conduct which is also proscribed under the statute. Brown v. General Services Administration, 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976); Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 542 (D.C. Cir. 1983); Davis v. Califano, 198 U.S. App. D.C. 224, 613 F.2d 957, 958 n.1 (D.C. Cir. 1979). *fn13" Accordingly, the Court holds that plaintiff has failed to state a cognizable First Amendment claim with respect to the alleged retaliation. See also Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983).

 2. As noted, plaintiff's First Amendment claim can also be read more broadly as an assertion that Vincent's investigation order and subsequent disclosure of information violated plaintiff's right to privacy as guaranteed in the First, Fourth, Fifth, and Ninth Amendments. However, the Supreme Court has foreclosed such a broad reading of constitutional privacy rights. See Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), which explicitly refused to extend the privacy right recognized by the Court as emanating from the penumbras of the First, Fourth, Fifth, and Ninth Amendments to permit the implication of a Bivens remedy for government officials' publication of derogatory information concerning an individual. Id. at 713. To the extent that plaintiff asserts such claims, they are more properly considered under the rubric of the Due Process Clause of the Fifth Amendment (Paul, supra; Doe v. U.S. Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092 (D.C. Cir. 1985)) and they will so be considered. *fn14"

 3. Plaintiff's final characterization of his First Amendment claim is that Vincent infringed his right, as a private citizen, to seek and obtain publicly available information. On this theory, Vincent's initiation of an investigation of plaintiff for possible Privacy Act violations, and his publication and criticism of plaintiff's examination of records infringed plaintiff's First Amendment right to receive information. This theory, too, cannot be sustained, for several reasons.

 Even assuming arguendo that plaintiff sought the information not in his official capacity but rather as a private citizen, *fn15" he still has not stated a First Amendment violation. Although the First Amendment protects the right to seek and to receive information from a willing speaker, *fn16" it does not grant a general right to information within the government's control. *fn17" Here the information sought concededly was not publicly available, *fn18" and plaintiff therefore cannot plausibly claim that he possessed a First Amendment right to receive it. There is, accordingly, no warrant whatever for the implication by the Court of a First Amendment Bivens remedy. *fn19"

 To the extent that plaintiff is asserting that Vincent's actions violated a First Amendment right to seek government information, his claim is precluded under Bush v. Lucas, supra, where the Supreme Court held that the existence of a comprehensive personnel scheme that could afford substantial relief to a government employee assertedly discharged or disciplined in violation of his constitutional rights was a special factor counselling hesitation in the creation of an additional, independent Bivens remedy. 103 S. Ct. at 2416-17. Since Bartel could, as he apparently did, *fn20" recover for the agency's wrongful refusal to hire him at the GS-13 level through the available Merit Systems Protection Board mechanism, Bush clearly precludes the implication of a Bivens remedy for the FAA's failure to rehire Bartel at the GS-13 level. *fn21"

 In short, plaintiff has failed to state a valid First Amendment Bivens claim against Vincent, and the Court will ...


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