and failed to provide plaintiff with a hearing or any other opportunity to rebut the allegations against her in the various Government reports. She argues that such agency actions were arbitrary, capricious, an abuse of discretion, and not in accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. § § 701-706.
Under § 704 of the APA, review is available under the APA only for final agency action "for which there is no other adequate remedy." 5 U.S.C. § 704. It is clear that "§ 704 'does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.'" Bowen v. Massachusetts, 487 U.S. 879, 903, 101 L. Ed. 2d 749, 108 S. Ct. 2722 (1988) (citing Attorney General's Manual on the Administrative Procedure Act 101 (1947)). A careful reading of the amended complaint reveals that plaintiff's APA claim is, in part, simply a restatement of her Privacy Act claims. And, to the extent that it is not, it is a claim relating to a personnel action, for which Congress has provided the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat. 111 (codified as amended in scattered sections of 5 U.S.C.) (CSRA). In other words, Congress has provided plaintiff with statutory schemes and remedies through which she may seek relief. Thus, her APA claim is properly dismissed under § 704.
3. 42 U.S.C. § 1985(1),(3)
Plaintiff alleges that defendants participated in a continuing conspiracy to harm her reputation and employment opportunities and to deprive her of equal protection of the laws, through gender bias, in violation of 42 U.S.C. § 1985(1),(3). Our Court of Appeals has held that the CSRA is the exclusive remedy for aggrieved federal employees and that, therefore, they are precluded from resorting to § 1985(1). Spagnola v. Mathis, 257 App. D.C. 320, 809 F.2d 16 (D.C. Cir. 1986), on reh'g en banc, 859 F.2d 223 (D.C. Cir. 1988).
Plaintiff might argue that because she is exempt from the remedial provisions of the CSRA, she has no remedy and therefore may bring suit under § 1985. However, the fact that Congress explicitly denied a remedy to Schedule A employees shows an intention to deny them a statutory or constitutional remedy for damages. See Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (Spagnola II) ; see also Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983) (refusing to create a Bivens remedy for a First Amendment violation arising out of an employment relationship for which Congress has provided a remedial scheme). The Court must defer to the Congressional scheme for federal employees, and thus, plaintiff's § 1985(1) claim must be dismissed. Furthermore, "Section 1985(3) clearly requires that a plaintiff show 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Katz v. Klehammer, 902 F.2d 204, 208 (2d Cir. 1990) (citing Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971)). Plaintiff's complaint fails to set forth even conclusory assertions that would support a finding of class-based animus. Her bare allegation toward the end of her complaint that she was a victim of gender bias clearly is not enough to survive a motion to dismiss.
4. The Privacy Act
Plaintiff argues that defendants have violated the Privacy Act, 5 U.S.C. § 552a, in several ways: (1) by failing to maintain accurate records, (2) by preventing plaintiff from learning all that is contained in those records, (3) by making improper disclosures, (4) by maintaining documents in purposes and manners for which they were not intended, (5) by refusing amendment or expungement of records, (6) by failing to collect information from plaintiff, (7) by maintaining a record regarding plaintiff's exercise of her First Amendment rights, and (8) by exempting the IG report from the Privacy Act. Defendants submit that these claims must be dismissed because they are barred by the two-year statute of limitations of the Privacy Act, and because, to the extent that she is alleging failure to amend, she has failed to exhaust administrative remedies.
As a preliminary matter, the Privacy Act provides for civil remedies only against an agency, not against individuals. Brown-Bey v. United States, 720 F.2d 467, 469 (7th Cir. 1983); Bruce v. United States, 621 F.2d 914, 916 n. 2 (8th Cir. 1980); Ely v. Department of Justice, 610 F. Supp. 942, 945 (N.D. Ill. 1985), aff'd, 792 F.2d 142 (7th Cir.), cert. denied, 479 U.S. 1009, 93 L. Ed. 2d 706, 107 S. Ct. 651 (1986); Windsor v. Federal Executive Agency, 614 F. Supp. 1255, 1259 n. 6 (M.D. Tenn. 1983), aff'd without op., 767 F.2d 923 (6th Cir. 1985). Accordingly, all Privacy Act claims plaintiff asserts against defendants other than the agencies must be dismissed.
Under 5 U.S.C. § 552a(g)(5):
An action to enforce any liability created under this section may be brought in the district court . . . within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.
Thus, in a "normal" Privacy Act claim, the statute of limitations begins to run when the plaintiff knows or should know of the alleged violation. Tijerina v. Walters, 261 App. D.C. 301, 821 F.2d 789, 798 (D.C. Cir. 1987). However, in cases in which the Government has "purposefully misrepresented information that could establish it already has violated the Act," the period begins to run upon actual discovery of the misrepresentation. Id.
Plaintiff received her first redacted copy of the IG report, along with a letter indicating that the report was exempt from the access and amendment provisions of the Privacy Act, in February 1981, more than five years before she filed this lawsuit. Two years later, in February 1983, she told an OPM investigator that the information in the IG report was "confusing and incorrect." Thus, even applying the more liberal limitations period due to the Government's alleged willful misrepresentations to plaintiff, her claims as to the IG report are barred. She admits in her amended complaint that by 1983, she had discovered the alleged incorrect statements in the report. Additionally, she knew in 1981 that she was denied access to the entire IG report, and that Treasury was claiming that the report was exempt from the provisions of the Privacy Act, such that she could not seek amendment.
Thus, those claims are barred by the statute of limitations.
In February and March 1981, several newspapers published articles about plaintiff's termination and the IG investigation, the substance of which led plaintiff to believe that a Treasury spokesman had provided some limited information about her. Plaintiff's claim stemming from that disclosure clearly is barred by the statute of limitations.
In July 1983, after she was denied employment at the Department of Commerce, plaintiff received a redacted copy of the OPM report. She alleges that it was then that she learned of the accusations against her, including the incident in Altman's office. At that time, she also was informed of the manner and purposes for which the information would be maintained and the procedure for seeking a Privacy Act amendment. She claims that at that point, the IG report "became transformed into a type of personnel document at Commerce and OPM," but that she was not given an opportunity to review the file and to make comments and questions. However, in spite of this actual knowledge of the alleged inaccuracies in the OPM report and in spite of the fact that she was not given the opportunity to provide further information, plaintiff did not seek amendment of the records, and waited three years before filing this lawsuit. Thus, her claims as to the OPM report are barred.
Some of plaintiff's claims are not, however, barred by the statute of limitations. Her claim that in October 1985, the IG provided her with an incomplete list of those to whom the IG report was distributed, is not barred. In addition, her claims that an OSC spokesman disclosed information from her records to a Jack Anderson reporter and that defendant Michael Driggs improperly disclosed information from her records to author John Donahue are not barred, as plaintiff learned of the alleged disclosures in 1986 and 1987, respectively. Finally, any claim that plaintiff might have that in 1986 the Secret Service improperly exempted her file from the Privacy Act provisions is not barred by the statute of limitations.
Because the Court finds that most of plaintiff's claims under the Privacy Act are barred by the statute of limitations, defendants' argument that plaintiff has failed to exhaust administrative remedies is largely moot. However, to the extent that it is relevant, exhaustion is required where a plaintiff seeks amendment of records under the Privacy Act. Nagel v. United States Dept. of Health, Educ. and Welfare, 233 App. D.C. 332, 725 F.2d 1438 (D.C. Cir. 1984). The only remaining Privacy Act claim seeking amendment is plaintiff's claim against the Secret Service. Judging from the December 16, 1986, letter plaintiff received from the Secret Service, plaintiff requested that the Secret Service amend her records, and the request was denied. Thus, plaintiff did comply with the exhaustion requirement as to the Secret Service, and that claim will not be dismissed.
5. Constitutional Claims
Plaintiff alleges violations of the First, Fourth, Fifth, Sixth, and Ninth Amendments of the Constitution, and seeks damages pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971).
Defendants argue that: (1) as to most of the defendants, plaintiff has not alleged specific actions by them which are alleged to be improper, (2) defendants have a qualified immunity from suit for plaintiff's constitutional claims, (3) all of the claims are barred by the applicable statute of limitations, (4) the CSRA and the Privacy Act are exclusive remedies which prevent plaintiff from asserting Bivens claims, and (5) plaintiff has failed to state a claim upon which relief can be granted.
a. Qualified Immunity and Lack of Specificity
There are two ways in which plaintiff may overcome defendants' defense of qualified immunity. If she argues that the actions objectively were unlawful, then she must plead that no reasonable official in that position "could have believed [the actions] to be lawful, in light of clearly established law. . . ." Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). However, where the alleged constitutional violation turns on an element of subjective intent, such as bad faith and malice, plaintiff must plead the unconstitutional motivation with specificity, according to a heightened standard of pleading. Siegert v. Gilley, 895 F.2d 797, 802 (D.C. Cir. 1990), aff'd, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991). Like the plaintiff in Siegert, plaintiff appears to ground her claims in allegations of malice and bad faith, thus requiring analysis under the heightened pleading standard. However, like the court in Seigert, the Court will read plaintiff's complaint liberally and also analyze plaintiff's claims using the objective route.
In order to defeat a defendant's claim of immunity under the objective standard, plaintiff must show that a defendant violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Additionally, "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. For most of plaintiff's claims, the key question is whether "the stigmatizing nature of the Department's charges, her discharge, and the subsequent foreclosure of future employment opportunities, including government job opportunities, combined to deprive [plaintiff] of a constitutionally protected liberty interest in reputation without due process." Doe v. United States Department of Justice, 243 App. D.C. 354, 753 F.2d 1092, 1104-5 (D.C. Cir. 1985) (footnotes omitted). In addition, plaintiff asserts that she was improperly discharged for exercising her First Amendment rights.
Most of plaintiff's claims can be analogized to the claims in Seigert, 895 F.2d at 797. In that case, the defendant, the plaintiff's former supervisor, responded to a request for information on plaintiff's job performance. Similarly, defendants in this case participated in IG and OPM investigations in which investigators requested information about plaintiff's job performance. Thus, "the relevant question, under Anderson, is . . . whether the constitutional right claimed by [plaintiff] was so clearly established that a candid response to such an official inquiry might give rise to liability for damages." And, like the court in Seigert, the Court concludes that the relevant law does not clearly establish that defendants' actions with respect to the investigations amounted to a constitutional violation.
In large part, defendants were simply responding to official inquiries with respect to plaintiff, and plaintiff has not established that those actions constituted a violation.
There are a few instances in which plaintiff has alleged improper disclosures by some defendants to third parties outside the employment context.
However, the Supreme Court has held that "injury to reputation by itself [is] not a 'liberty' interest protected under the Fourteenth Amendment." Siegert v. Gilley, 114 L. Ed. 2d 277, 111 S. Ct. 1789, 1794 (1991) (citing Paul v. Davis, 424 U.S. 693, 708-709, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976)). "Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation." Siegert, 111 S. Ct. at 1794. Moreover, any constitutional claims plaintiff might have had with respect to those disclosures are barred by the Privacy Act. See infra [slip op.] p. 23.
Finally, under the reasonable person standard, defendants would not have qualified immunity with respect to plaintiff's claim that she was fired in retaliation for exercising her First Amendment rights. However, as discussed below, plaintiff's First Amendment claim is barred by the CSRA See infra [slip op.] p. 22.
Turning then to a subjective analysis with regard to defendants' immunity defense, it is well-settled that a Bivens claim brought against a federal official in his or her individual capacity which turns on an unconstitutional motive must be pled with specificity. Siegert, 895 F.2d at 802. Plaintiff claims that defendants made false charges against her which were made maliciously, in bad faith, and with the intent to preclude her employment opportunities, harm her reputation, and limit her First and Fifth Amendment rights. However, as to half of the named defendants, plaintiff has failed to allege any specific actions which violated her constitutional rights. Thus, plaintiff's claims against James Baker, Malcolm Baldridge, John Simpson, Constance Horner, and Maria Johnson in their individual capacities clearly must be dismissed.
Turning then to the allegations against James King, Protected Sources A and B, Shigeki Sugiyama, Michael Driggs, Roger Altman, and Anthony Conques, the Court examines them in light of the heightened pleading standard. Although plaintiff in her amended complaint makes an attempt to meet the requisite specificity, she fails to do so. Her allegations of malice and bad faith are unsupported by direct evidence of improper motivation. Instead, plaintiff takes the Court through a litany of comments made by various defendants and then concludes that the comments were knowingly false and made with malice as part of a conspiracy against plaintiff. In addition, she fails to provide any direct evidence that the defendants retaliated against her for exercising her First Amendment rights. Thus, plaintiff has failed to meet the heightened pleading standard for a case involving immunity, and the constitutional damage claims against these defendants must be dismissed. See id. at 803-05; cf. Hobson v. Wilson, 237 App. D.C. 219, 737 F.2d 1, 10, 25-31 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 142, 105 S. Ct. 1843 (1985) (where complaint referred to specific memoranda admitting that actions were taken with improper motivation, plaintiff could overcome qualified immunity defense).
b. The CSRA and The Privacy Act as Exclusive Remedies
Defendants also argue that the Court should not imply a Bivens action where Congress has already provided comprehensive statutory schemes which provide plaintiff with meaningful remedies. Specifically, they contend that the CSRA and the Privacy Act bar plaintiff's constitutional claims.
The Court agrees that the CSRA precludes plaintiff's Bivens claims. In Bush, 462 U.S. at 367, the Court found that where Congress had acted to regulate civil service employment actions, and had provided meaningful remedies for constitutional violations, courts should defer to the judgment of Congress and refrain from creating Bivens remedies. Recent decisions have made clear that "the preclusive effect of Bush extends even to those claimants within the system for whom the CSRA provides 'no remedy whatsoever.'" Spagnola II, 859 F.2d at 223 (citing Schweiker v. Chilicky, 487 U.S. 412, 101 L. Ed. 2d 370, 108 S. Ct. 2460 (1988)). Thus, even though plaintiff was fired from a Schedule A position and then denied a Schedule C position, and Schedule A and Schedule C employees do not enjoy the same substantive and procedural protections provided members of the competitive service by the CSRA, plaintiff does not have a remedy for damages for constitutional violations outside of the CSRA. Thus, any damages claim plaintiff has regarding her termination for exercising her First Amendment rights is barred. The CSRA does not, however, preclude plaintiff's right to seek injunctive relief for violation of her constitutional rights. Spagnola II, 859 F.2d at 229-30.
Plaintiff's remaining constitutional damage claims, relating to disclosures of false information in plaintiff's records by certain defendants, analogously are precluded by the Privacy Act. Like the CSRA, the Privacy Act provides a comprehensive scheme for addressing plaintiff's concerns about the inaccuracy of the records and about disclosure of them to third parties. In establishing the Privacy Act, Congress has undertaken to balance the individual interests of the subjects with the interest in protecting certain records and assuring an efficient government. Therefore, pursuant to the Bush mandate that courts should refrain from implying a Bivens remedy when "special factors" counseling hesitation, such as Congressionally-provided remedies for constitutional violations, are present, the Court concludes that plaintiff's constitutional claims regarding her records and any disclosures by defendants about those records are barred. See Bush, 462 U.S. at 378.
6. Tort Claims
Plaintiff makes several claims for damages which she alleges are grounded in theories of common law tort. For each of these claims, the United States has been substituted as the exclusive defendant in place of the individually-sued defendants James Baker, Malcolm Baldridge, James King, John Simpson, Constance Horner, Maria Johnson, Michael A. Driggs, Roger C. Altman, Anthony L. Conques, and Shigeki Sugiyama, pursuant to the Federal Employees Liability Reform and Tort Compensation act of 1988. The federal government's sovereign immunity is waived only in the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. However, the FTCA provides that a suit against the United States cannot be instituted "unless the claimant shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency in writing." 28 U.S.C. § 2675(a). Because exhaustion of administrative remedies is a jurisdictional requirement under the FTCA, Odin v. United States, 211 App. D.C. 209, 656 F.2d 798, 802 (D.C. Cir. 1981), and plaintiff has not so exhausted her remedies, the Court does not have jurisdiction over plaintiff's common law tort claims.
7. Failure To State a Claim
Plaintiff has not alleged a single violation against the United States Merit Systems Protection Board or Maria Johnson, either individually or in her official capacity. Accordingly, the claims against these defendants must be dismissed.
In sum, plaintiff's FOIA, APA, and 42 U.S.C. § 1985 claims are dismissed. All Privacy Act claims are dismissed, with the exception of claims arising out of (1) the 1985 IG report distribution list which plaintiff alleges was incomplete, (2) the alleged 1986 disclosures to Jack Anderson, (3) the alleged 1987 disclosures to John Donahue, and (4) the Secret Service's exemption of plaintiff's file from the Privacy Act provisions. In addition, to the extent that the foregoing Privacy Act claims remain, they remain only as against the agencies. All Bivens claims, as well as all common law tort claims, are dismissed. Finally, all claims against the MSPB and Maria Johnson are dismissed.
An appropriate Order accompanies this Opinion.
ORDER - August 29, 1991, Filed
Upon consideration of defendants' motion to dismiss or, in the alternative, for summary judgment, plaintiff's opposition thereto, and the entire record herein, for the reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that defendants' motion is granted in part and denied in part. It hereby further is
ORDERED, that plaintiff's claims pursuant to the FOIA, the APA, 42 U.S.C. § 1985, and common law tort law, as well as plaintiff's Bivens claims, are dismissed. It hereby further is
ORDERED, that plaintiff's claims against defendants Maria Johnson and the Merit Systems Protection Board are dismissed. It hereby further is
ORDERED, that plaintiff's Privacy Act claims are dismissed in part, in accordance with the accompanying Opinion.