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,
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..
Presently pending before the Court, on remand from the Court of Appeals,
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.
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.
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,
and for common-law defamation.
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.
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."
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.
Although Vincent's expressed frustration with "the chameleon-like nature" of plaintiff's claims
is understandable, the Court is obligated to construe the allegations of the pro se complaint broadly,
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.
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).
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.
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,
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,
it does not grant a general right to information within the government's control.
Here the information sought concededly was not publicly available,
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.
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,
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.
In short, plaintiff has failed to state a valid First Amendment Bivens claim against Vincent, and the Court will therefore dismiss that claim.
B. Fifth Amendment
Plaintiff also asserts Bivens claims against Vincent under the Due Process Clause of the Fifth Amendment. In particular, he asserts that Vincent's publication of defamatory information through letters and telephone calls to prospective employers deprived him of a constitutionally-protected liberty interest.
To establish that the government has deprived him of such an interest a plaintiff must "demonstrate that the government's defamation resulted in a harm to some interest beyond reputation." Doe v. Department of Justice, supra, 753 F.2d at 1111; see also Paul v. Davis, supra; Bartel, supra; Mosrie v. Barry, 231 U.S. App. D.C. 113, 718 F.2d 1151, 1162 (D.C. Cir. 1983). Loss of future or present government employment satisfies that required additional interest. Id. Here, Bartel has alleged that Vincent's actions defamed him and resulted in the denial of his right to consideration for re-employment at the GS-13 position on an equal basis with others of equivalent skill and experience. See Bartel, 725 F.2d at 1415. Thus, taking his allegations as true, he has identified a cognizable liberty interest the denial of which would constitute a due process violation.
That does not end the inquiry, however, for a Bivens remedy is not available with respect to such a violation. See Bush v. Lucas, supra, 103 S. Ct. at 2416-17. As noted above, plaintiff has apparently recovered for the denial of this liberty interest through the Merit Systems Protection Board mechanism,
and he has not identified any violation stemming from the denial of this interest that was not remedied by the MSPB decision. Where, as here, plaintiff obtained a substantially adequate remedy through the comprehensive federal personnel scheme, Bush precludes the implication of an additional Bivens Fifth Amendment remedy. Bush, 103 S. Ct. at 2416-17. Accordingly, plaintiff's Fifth Amendment claim must also be dismissed.
Plaintiff has also asserted a common-law defamation claim against Vincent. This claim must also be dismissed, however, for two reasons.
First, the District of Columbia limitation period for defamation claims, which must be applied in this case,
is one year from the date of publication. 4 D.C. Code Ann. § 12-301(4). The letters plaintiff alleges were defamatory were sent on January 10, 1980, and the latest of the allegedly defamatory telephone conversations occurred in April, 1980. The complaint in No. 82-0077 was filed on January 8, 1982, some eight months after the last possible date for filing within the statutory time period. Plaintiff's defamation claim is therefore time-barred and must be dismissed on that ground.
Second, the defamation claim is also barred because Vincent is entitled to immunity against that claim. A federal official is absolutely immune from common law torts allegedly committed in his individual capacity if (1) the allegedly tortious action was committed within the outer perimeter of his line of duty, and (2) it was related to a discretionary rather than to a ministerial function. Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959); Gray v. Bell, 229 U.S. App. D.C. 176, 712 F.2d 490 (D.C. Cir. 1983); Sami v. United States, 199 U.S. App. D.C. 173, 617 F.2d 755 (D.C. Cir. 1979); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S. App. D.C. 397, 566 F.2d 289 (D.C. Cir. 1977) (en banc).
The uncontroverted affidavits of Vincent and of Joseph DelBalzo, the FAA Eastern Region Director to whom Division Chief Vincent reported, and the undisputed facts in the case establish beyond doubt that Vincent's actions were within the outer perimeter of his line of duty, if not directly within the scope of his authority. In sending letters informing three air safety inspectors that Bartel had violated their rights under the Privacy Act, Vincent acted upon the recommendation of FAA counsel.
Similarly, in discussing Bartel's problematic conduct with Bartel's potential employers, Vincent was discussing the conduct of one of the former employees for whose supervision he was responsible.
Vincent's communications likewise constituted the exercise of discretionary functions.
The undisputed facts establish that these communications occurred only after, and indeed upon the recommendation of, other federal officials and counsel.
Such actions clearly reflect the individualized consideration and deliberation that is the essence of discretionary decisionmaking. Plaintiff's defamation claim must therefore also be dismissed.
In No. 83-1250, defendants have moved for dismissal or summary judgment on the grounds that venue is lacking and that plaintiff's Federal Tort Claims Act claim is barred both by the FTCA and by the applicable statute of limitations. Plaintiff has cross-moved for summary judgment with respect to his Title VII claim. Because venue is lacking as to both of the claims in No. 83-1250, defendants' motion will be granted and these claims, too, will be dismissed.
A. Venue Generally
The Court's June 6, 1984 Order consolidating No. 83-1250 with plaintiff's other two pending cases in no way precludes a challenge to the claims therein on the ground that venue is lacking. The traditional rule regarding venue is that venue must be appropriate for each claim. See, e.g., International Patent Development Corp. v. Wyomont Partners, 489 F. Supp. 226, 230 (D. Nev. 1980); see generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure : Civil § 3808 at 42.
Moreover, the consolidation of civil cases does not result in a merger of the cases in which they lose their separate identities for all purposes. See 9 Wright, Miller & Kane, supra, Civil § 2382 at 254. Indeed, it could not: Rule 82, Fed. R. Civ. P. explicitly provides that the Federal Rules of Civil Procedure (including, of course, Rule 42(a), which permits the consolidation of cases) "shall not be construed to extend . . . the jurisdiction of the United States district courts or the venue of actions therein." Fed. R. Civ. P. 82 (emphasis added). Thus, the consolidation of these cases cannot have cured any venue defects in No. 83-1250, and the Court must determine whether venue lies in this district for the claims asserted in that action.
B. The Title VII Claim
The special venue provision governing Title VII actions provides that such actions may be brought in one of three districts: (1) that in which the unlawful employment practice is alleged to have been committed; (2) that in which the employment records relevant to the practice are maintained or administered; or (3) that in which the plaintiff would have worked but for the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(f). The special venue provision reflects the clear "intent of Congress to limit venue to the judicial districts concerned with the alleged discrimination." Stebbins v. State Farm Mutual Insurance Co., 134 U.S. App. D.C. 193, 413 F.2d 1100, 1102 (D.C. Cir. 1969). An examination of the record in this case reflects that plaintiff has failed to establish venue in this district on any of the available statutory grounds.
None of the acts allegedly violative of Title VII was committed in the District of Columbia. Vincent's alleged retaliation against plaintiff for filing his "reverse discrimination" complaint occurred either in Philadelphia, the location of the FAA office at which plaintiff was employed, or in New York City, where Vincent's office is located. Similarly, the discrimination allegedly resulting from Vincent's letters and telephone calls occurred either in New York City, or in the Atlanta, Georgia, or Northern Virginia or Richmond, Virginia, FAA offices. The complaint alleges no discriminatory acts occurring in the District of Columbia. Accordingly, plaintiff cannot establish that this is the proper venue for his Title VII claim under the first prong of the special venue provision.
Nor can venue be established under the second, records location prong of the venue statute. The uncontradicted declaration of Lionel Driscoll, Director of the FAA's Personnel Management Operations Division, establishes that the personnel records of FAA Eastern Region employees such as plaintiff are maintained and administered at the Regional Headquarters at JFK International Airport in New York City. Since plaintiff's personnel papers concerning his employment in Philadelphia and applications for employment in Atlanta and in Richmond are not maintained in Washington, D.C., he cannot establish this as a proper venue on the grounds that the relevant records are maintained and administered here.
Finally, since this is not the judicial district in which plaintiff would have worked but for the allegedly discriminatory personnel practices, venue in this district is inappropriate under the third prong of the Title VII venue statute.
The Court must consider next whether, pursuant to 28 U.S.C. § 1406, it should dismiss the claim or transfer it, in the interests of justice, to another district in which it might have been brought. Based on the allegations in the complaint, it appears that venue under this provision might be appropriate in Philadelphia, where plaintiff initially was employed by the FAA and allegedly was constructively discharged; in Atlanta, where plaintiff applied for and was denied another FAA position; or in Richmond, Virginia, where plaintiff was denied a GS-13 position (although he ultimately accepted a GS-12 position). Since several other districts may be proper venues for the assertion of plaintiff's Title VII claim, it is appropriate that the Court afford plaintiff the initial choice as to which of the available forums is the most appropriate one in which to litigate his claim.
The Court will therefore dismiss plaintiff's Title VII claim.
C. The FTCA Claim
Venue as to plaintiff's Federal Tort Claims Act claim is governed by 28 U.S.C. § 1402(b), the general venue statute governing suits in which the United States is a defendant. See Misko v. United States, 77 F.R.D. 425, 429 n.7 (D. Colo. 1978); see generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure : Civil §§ 3814-15 (1976 and Supp.). The statute provides that venue in civil tort suits against the United States may be brought "only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b).
Neither of those conditions is satisfied in this case. The pleadings indicate that plaintiff is a resident of Maryland, not of the District of Columbia.
And, as explained previously, none of the alleged tortious acts occurred in the District of Columbia. Accordingly, there is no statutory basis for finding venue in this District as to the plaintiff's FTCA claim. His assertions that jurisdiction of the action lies in the District of Columbia, and that the FAA has its principal office in the District, are correct, but they are entirely irrelevant to the statutory tests involved, and they obviously cannot constitute a basis for concluding that venue is appropriate in this District.
As with plaintiff's Title VII claim, venue as to this claim appears to be appropriate in more than one district: plaintiff could presumably bring this action either in Maryland, where he currently resides, or in the Eastern District of Virginia, where the alleged torts occurred. Moreover, there is a significant question whether plaintiff states a valid FTCA claim.
Under these circumstances, the appropriate course is to dismiss with respect to the FTCA claim as well, and the Court will do so.
For the reasons stated, the Court will dismiss plaintiff's claims against defendant Vincent in his individual capacity in No. 82-0077; it will dismiss the complaint in No. 83-1250; and it will schedule a prompt status call so that the remaining claims in these consolidated cases may be speedily resolved.
For the reasons stated in the accompanying Memorandum Opinion issued this date, it is this 17th day of April, 1985
ORDERED that defendant Vincent's motion to dismiss plaintiff's constitutional and common-law defamation claims against him in No. 82-0077 be and it is hereby granted; and it is further
ORDERED that defendants' motion to dismiss the complaint in No. 83-1250 be and it is hereby granted; and it is further
ORDERED that plaintiff's motion for partial summary judgment in No. 83-1250 be and it is hereby denied; and it is further
ORDERED that a status call in this case shall be held on April 30, 1985 in Courtroom No. 1 at 9:45 a.m.