Plaintiff also seeks to state a claim under the Fifth Amendment. Although the Court has serious doubt whether there is any constitutional remedy in addition to whatever relief plaintiff may be entitled to under the Rehabilitation Act, it is not necessary to reach this issue because plaintiff's constitutional claim is barred by the statute of limitations.
Plaintiff concedes that the applicable limitations period is three years and the complaint was filed more than three years after the alleged discrimination but maintains that the time period should be tolled during the period he pursued his administrative remedies or, alternatively, the cause of action did not accrue until he was denied administrative relief. Plaintiff's argument has already been rejected. In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975), the Supreme Court decided that because Title VII and 42 U.S.C. § 1981 were separate remedies pursuing administrative remedies under Title VII did not toll the statute of limitations for § 1981, even if the same set of facts were involved. The same rule must apply to plaintiff's independent claims based on the same facts under the Rehabilitation Act and the Fifth Amendment. Consequently, plaintiff's fifth amendment claim is time-barred.
Accordingly, all plaintiff's claims are dismissed except for his claims under Counts I and II against defendant Department of the Treasury based on the Rehabilitation Act.