603 F. Supp. at 1316 (emphasis added). Here, plaintiff elected to sue two federal agencies instead of the United States. For this reason and in view of the discussion on plaintiff's failure to exhaust administrative remedies, the Court finds that the FTCA constitutes an insuperable obstacle to plaintiff's Count I claims insofar as he seeks relief against defendants Treasury and Secret Service.
C. Constitutional Tort Claims
In Count II of his complaint, plaintiff alleges a deprivation of his fifth amendment due process rights by defendants Treasury, Secret Service, and Hornyak. Plaintiff "instituted [this] action against the federal government under the FTCA and against the individuals under the Constitution." Plaintiff's Opposition at 10. Before addressing plaintiff's constitutional tort claims against defendant Hornyak, the Court will first consider plaintiff's FTCA action against the agencies. As shown in the earlier discussion of plaintiff's Count I FTCA claims, the FTCA applies only to actions against the United States or individuals. An action against a federal agency is not recognizable under the Act. See 28 U.S.C. § 2679(a). Accordingly, the Court grants defendants' motion to dismiss as to this portion of the Count II claim.
The sole remaining Count II claim is plaintiff's Bivens3 action against defendant Hornyak. Plaintiff claims that Mr. Hornyak denied him due process in proceedings before the MSPB by his alleged intimidation of plaintiff's witnesses. Defendants assert that any cognizable Bivens action against defendant Hornyak is barred by the applicable statute of limitations. The Court agrees with defendants.
"When a federal action contains no statute of limitations, courts will ordinarily look to analogous provisions in state law as a source of a federal limitations period." Doe v. United States Dept. of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1114 (D.C. Cir. 1984) (Bivens action case) (citations omitted). The District of Columbia's statute of limitations, therefore, is applicable in this instance. This statute provides a three-year limitations period for actions like this "for which a limitation is not otherwise specially prescribed. . . ." D.C. Code Ann. § 12-301(8).
Both parties have selected various dates on which the statute of limitations period began to run. These dates share one common element -- they were all chosen to represent the last possible date on or before which any alleged acts of intimidation of witnesses by defendant Hornyak could have occurred. For example, plaintiff alleges in his complaint that the acts of intimidation by defendant Hornyak occurred "on or about March 3, 1983." Complaint para. 16. Plaintiff obviously chose this date in order to fall within the three-year statutory period since he filed the instant lawsuit exactly three years later. Defendants, on the other hand, argue that "for any witness intimidation to properly be before the court it would have had to occur on or later then [sic] March 1 and 2, 1983." Defendants' Reply at 5. These dates were chosen since they were the last two days of plaintiff's MSPB hearings.
The Court agrees with the underlying premise used by the parties in their selection of the date for determination of the statute of limitations time period. However, the Court disagrees with their respective choices. After a close examination of the entire record, the Court concludes that February 25, 1983, is the date to be used in calculating the statute of limitations period.
The Court reaches this conclusion because February 25, 1983, is the date on which Edward J. Pollard, a Secret Service official, wrote a memorandum to three of plaintiff's witnesses to assure them that no actions of reprisal would be taken against them if they testified during plaintiff's MSPB hearings. See Exhibit 5. Mr. Pollard encouraged the witnesses to testify in the proceedings and "to respond to any questions in a direct[,] complete and truthful manner." Id.
The Pollard memorandum was written in response to testimony by Sergeant Edward Melerski during plaintiff's MSPB hearing. Sergeant Melerski testified that he had been ordered not to testify at the hearing by a high Secret Service official under a threat of retaliation. It appears to the Court that none of the alleged acts of intimidation could have occurred after this memorandum was written. In fact, all three of the witnesses who received the memorandum testified on plaintiff's behalf after either receiving verbal assurance of no reprisals during the actual hearing or receipt of the February 25th letter.
Sergeant Edward Melerski testified on February 24, 1983, the fourth day of the hearing. Hagmeyer Affidavit attached to Plaintiff's Opposition ("Haymeyer Affidavit") para. 6; exhibit 1 at 2-3. During his testimony, Sergeant Melerski expressed some reservations about testifying due to his fear of reprisal. Exhibit 1 at 2. Ms. Jane Vezeris, counsel for the Secret Service, offered Sergeant Melerski her personal assurance that no retaliatory actions would be taken against him. Id. at 2-5. The testimony proceeded as follows:
MS. VEZERIS: . . . All I can tell you is that there certainly would be no reprisal action taken for your participation in this hearing no matter what you testify to. It's expected that you will tell the truth, and that's what we hope that you will tell, and we certainly wouldn't want to take a reprisal action against an employee who is going to be telling the truth no matter what it comes out to be.
APPEALS OFFICER: Does this put you at rest at all? I certainly hope that there will be no feeling on your part that there should be any retaliation.