941 F.2d 780 (9th Cir. 1991), 89-15933, Doe v. Attorney General of United States

Docket Nº:89-15933, 89-16134.
Citation:941 F.2d 780
Party Name:John DOE, Plaintiff-Appellant, v. ATTORNEY GENERAL OF the UNITED STATES; the Director of the Federal Bureau of Investigation; Richard Held, Special Agent in Charge of the San Francisco Office, Federal Bureau of Investigation, Defendants-Appellees.
Case Date:August 01, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 780

941 F.2d 780 (9th Cir. 1991)

John DOE, Plaintiff-Appellant,



Federal Bureau of Investigation; Richard Held, Special

Agent in Charge of the San Francisco Office, Federal Bureau

of Investigation, Defendants-Appellees.

Nos. 89-15933, 89-16134.

United States Court of Appeals, Ninth Circuit

August 1, 1991

Argued and Submitted May 17, 1990.

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[Copyrighted Material Omitted]

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Matthew A. Coles, American Civil Liberties Union of Northern Cal., Jo Anne Frankfurt, Employment Law Center, Christopher Byers, Pillsbury, Madison & Sutro, San Francisco, Cal., for plaintiff-appellant.

Deborah Ruth Kant, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Catherine I. Hanson and Alice P. Mead, for amicus curiae of the California Medical Ass'n.

Appeal from the United States District Court for the Northern District of California.

Before CHOY and FLETCHER, Circuit Judges, and FITZGERALD, District Judge. [*]

FLETCHER, Circuit Judge:

John Doe appeals district court judgments (1) holding that there is no private cause of action against the United States under section 504 of the Rehabilitation Act, (2) holding that the defendants did not violate Doe's right to privacy, and, (3) granting an individual defendant qualified immunity. On appeal, the case presents issues of mootness, jurisdiction, sovereign immunity, and qualified immunity.


John Doe was a physician and director of a clinic owned and operated by a hospital. 1 Between December 1984 and August 1988, the San Francisco office of the Federal Bureau of Investigation (FBI), under an annually renewed procurement contract, sent all of its agents to the clinic for annual physical examinations and all of its potential agents there for pre-hiring examinations. Doe performed virtually all of the physical examinations, and his salary was based in part on the number of the examinations that he did.

Doe has AIDS. 2 On about August 15, 1988, an unidentified third party told the FBI that Doe had Kaposi's sarcoma, a cancerous skin disease often contracted by persons with AIDS. The FBI asked Doe if he had AIDS. He would not confirm that he did but assured the FBI that his routine exams posed no risk to the patients. The FBI, evidently not satisfied, stopped sending agents and applicants to Doe on August 23 because of concern about his illness. Richard Held, Special Agent in Charge of the San Francisco Office of the FBI, reached this decision because Doe would not refute the allegation that he had AIDS, provide a different doctor to do the exams, or agree to tell the agents that he had AIDS and let them decide whether to permit his examination.

Amidst ongoing discussions among the FBI, Doe, and the hospital, the FBI asked hospital representatives and the FBI's Assistant Director of Administrative Services about risk. The hospital representatives said there was none; the Assistant Director did not answer the question. The FBI also consulted its lawyers. It did not consult with any independent medical authority about the potential risk. Doe, hospital and clinic officials, and FBI personnel met on September 7; the FBI still wanted

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to know if Doe had AIDS. Doe and the hospital still would not confirm or refute the allegation but told the FBI that Doe's examinations posed no risk to FBI agents and applicants. They told the FBI specifically that Doe adhered to the Centers for Disease Control (CDC) and American Medical Association guidelines for infection control.

On September 30, Doe sued the Attorney General of the United States, the Director of the FBI, and Agent Held. He sought temporary relief and a permanent injunction restraining the FBI from (1) entering into an agreement with anyone but Doe's hospital to perform the physicals, (2) sending the agents or applicants to anyone but the hospital because of Doe's handicap, (3) revealing to anyone that Doe was handicapped or that the handicap was AIDS, and (4) discouraging other federal agencies from using Doe's or the hospital's services. Doe also sought money damages and attorneys' fees.

The district court granted a preliminary injunction preventing the FBI from disclosing Doe's condition and from refusing to send agents and applicants to the clinic. The FBI responded by arranging with three different health care organizations, including Doe's, to provide physical examinations. Before the FBI stopped sending people to the clinic, Doe had done 30-40 physicals per month. After the preliminary injunction, he saw about five FBI patients per month.

On April 5, 1989, the district court granted summary judgment in favor of Agent Held on the ground of qualified immunity. The district court held a trial between May 9 and May 17. On August 25, 1989, the district court issued its published opinion on the remainder of the case. Doe v. Attorney General, 723 F.Supp. 452 (N.D.Cal.1989).


The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction of the appeal under 28 U.S.C. § 1291.


The decision that there is no cause of action against the government under section 504 of the Rehabilitation Act is a legal question reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.1984) (en banc). The district court's findings of fact can be reversed only if clearly erroneous. Id. Review of the district court's decision that Held is entitled to qualified immunity is de novo. Wood v. Ostrander, 879 F.2d 583, 591 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990)



The government contends that Doe's injunctive claims are moot. A few days after the district court decision, Doe was stricken with CMV retinitis, which seriously impaired his vision. He resigned from the hospital staff for reasons of disability. By the time of oral argument before our court on May 17, 1990, his vision had improved so that he could have resumed full-time work but for recurrent bouts of extreme fatigue. Doe's physician informed his lawyers that it was "extremely unlikely that he would be able to resume work full time." Appellant's Opening Brief at 5 n. 3.

Doe claims that one of the injuries he alleged at trial, distress that his coworkers' jobs are in jeopardy because of the discrimination against him, could be remedied by an injunction requiring the FBI to continue sending agents to the clinic for physicals. The hospital is not a party to the suit, however, and Doe has no standing to seek an injunction requiring the FBI to send agents to the clinic when Doe has resigned his position there.

Doe claims that even if his injunctive claims are moot, he is entitled to declaratory relief, citing Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1113 (9th Cir.1987). The plaintiff in Zolin, however, sought declaratory relief in the complaint. When the court ruled the injunctive claim moot, it remanded

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for a ruling on the claim for declaratory relief. Doe did not seek declaratory relief in his complaint, and he cannot, in effect, amend it now.

The capable-of-repetition-yet-evading-review exception in mootness doctrine also does not save Doe's injunctive claims. This exception provides only minimal protection to individual plaintiffs. Under Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975) (per curiam), the challenged action must be too short in duration "to be fully litigated prior to its cessation or expiration," and there must be "a reasonable expectation that the same complaining party would be subject to the same action again." Persons with AIDS complaining about discrimination against them because of their disease fit the evading-review requirement. They will usually become disabled or even die before a civil action can traverse the entire judicial field. Doe cannot show, however, that we can reasonably expect him to be subject to the same FBI action in the future. By his own admission, he will not return to work. His injunctive claims are therefore moot.


Although the injunctive claims are moot, we remain confronted with Doe's damage claims. First we must consider the jurisdiction of the district court to adjudicate these claims. Under the Tucker Act, 28 U.S.C. § 1491(a), the Court of Claims has exclusive jurisdiction over all damage claims against the federal government "in cases not sounding in tort." 3 A discrimination claim under the Rehabilitation Act does sound in tort, however, not contract.

The Supreme Court's approach to statutes of limitations for the federal civil rights laws are instructive. In Goodman v. Lukens Steel Co., 482 U.S. 656, 660-62, 107 S.Ct. 2617, 2620-22, 96 L.Ed.2d 572 (1987), the Supreme Court addressed the issue of what statute of limitations should apply to actions under 42 U.S.C. § 1981. Section 1981 prohibits discrimination in making and enforcing contracts and other activities. Like 42 U.S.C. §§ 1982 and 1983, which prohibit discrimination in property rights matters and under color of state law, respectively, section 1981 does not contain its own statute of limitations; federal courts are to apply "the most appropriate or analogous state statute of limitations." Id. at 660, 107 S.Ct. at 2620. In Wilson v. Garcia, 471 U.S. 261, 266-68, 105 S.Ct. 1938, 1941-43, 85 L.Ed.2d 254 (1985), the Supreme Court had decided that the state statute of limitations for personal injury claims is most appropriate to and must be applied in section 1983 actions. In Goodman, the appellant argued that because section 1981 dealt "primarily with economic rights, more specifically the execution and enforcement of contracts," the more appropriate statute of limitations is the one applicable to suits for interference with contractual rights.

The Court disagreed, holding that the personal...

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