Metz v. McKinley, Civ. A. No. 282-215.

• Decision Date: 24 February 1984
• Docket Number: Civ. A. No. 282-215.
• Citation: 583 F. Supp. 683
• Parties: George F. METZ and Ingrid Metz, Plaintiffs, v. David W. McKINLEY, David G. Epstein, William D. Allen, Ruth C. Kent, A. George Graves, Robert E. McCann, James D. Lanier and John J. O'Meara, Defendants.
• Court: U.S. District Court — Southern District of Georgia

583 F. Supp. 683

George F. METZ and Ingrid Metz, Plaintiffs, v. David W. McKINLEY, David G. Epstein, William D. Allen, Ruth C. Kent, A. George Graves, Robert E. McCann, James D. Lanier and John J. O'Meara, Defendants.

Civ. A. No. 282-215.

United States District Court, S.D. Georgia, Brunswick Division.

February 24, 1984.

COPYRIGHT MATERIAL OMITTED

George M. Roundtree, Terry K. Floyd, Brunswick, Ga., for plaintiffs.

Kenneth Etheridge, Asst. U.S. Atty., Savannah, Ga., for defendants.

ORDER

ALAIMO, Chief Judge.

This action arises out of the circumstances surrounding the dismissal of plaintiff George Metz from his federal employment at the Federal Law Enforcement Training Center ("FLETC") in Brunswick, Georgia. In their complaint filed on November 11, 1982, plaintiffs allege numerous deprivations of their constitutional rights in an effort to invoke the Court's federal question jurisdiction under the seminal case of Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiffs have also filed a separate action against the United States and several of its executive agencies (CV 283-178) seeking damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. The Bivens suit against the individual defendants is currently before the Court on defendants' motions to dismiss or, in the alternative, for summary judgment.

FACTS

George Metz was a driving instructor at the FLETC facility until his removal in November of 1982. The individual defendants are various supervisory employees at the facility.¹ The facility is operated by the Department of the Treasury as a training service to various law enforcement agencies of the Federal Government. The facility offers a variety of training courses in weaponry, surveillance techniques and automobile maneuvering.

According to plaintiffs' complaint, which has been adopted by the defendants for purposes of their dispositive motions, his personnel problems with the individual defendants occurred between 1977 and 1979. During this two-year period, plaintiff claims that he was deliberately passed over for promotions in favor of less qualified and deserving candidates. This deliberate treatment at the hands of the defendants, in turn, caused plaintiff to vocalize various charges of misconduct against some of the defendants to other employees at FLETC. Plaintiff asserts that these complaints precipitated a conspiracy among the defendant supervisors to rid themselves of George Metz.

Pursuant to this alleged conspiracy, plaintiff claims that in July of 1982 he received a demotion in the characterization of his job performance from "outstanding" to "excellent." The performance evaluation was completed by defendant Carter, plaintiff's immediate supervisor in the Driver Specialties Branch at FLETC. This performance evaluation prompted Metz to become even more uncomplimentary to the defendants in his frank conversations with other nonsupervisory FLETC employees.

As a result of these "conversations" plaintiff was having with his co-workers, he was asked to attend a meeting on August 3, 1982, with defendant Lanier. Lanier was also plaintiff's immediate supervisor in the Driving Instructor's branch of the faculty at FLETC. Also present at this meeting were defendants Epstein and McCann. These defendants are both supervisors in the Faculty Management division of FLETC. Plaintiff characterizes this meeting as a "trap" whereby defendants attempted to elicit statements that would later be used against plaintiff. Plaintiff characterizes his own conduct at this meeting as a "voicing of his frustrations and concerns" about his treatment at the hands of his supervisors.

At the conclusion of this meeting, Metz, a reservist in the United States Marine Corps, departed to report for duty at a military installation in Columbia, South Carolina. For whatever purpose, defendants decided that plaintiff presented a threat to their personal safety. Based on this belief, defendants took the following action. First, McKinley and Graves contacted the priest at plaintiff's parish, Father Raymond Carr, and requested that he accompany them to the Metz residence. McKinley was the then-Acting Director of FLETC and Graves was another supervisor in the Driving Instructor's branch of the faculty at FLETC. McKinley and Graves told Father Carr that the visit was necessary to locate Metz and to ask his wife, plaintiff Ingrid Metz, what she knew about the personal threats her husband had been making against one or more of the defendants. Father Carr telephoned Mrs. Metz and received her permission to bring the defendants over to visit. At this visit, Graves and McKinley were told that Metz was on his way to Columbia, South Carolina, to report for duty in the military.

In the early morning hours of August 4, 1982, defendants secured an arrest warrant against plaintiff on charges of terroristic threats. Plaintiff alleges that the warrant was obtained on the advice of FLETC's legal counsel, John J. O'Meara. FLETC officials also contacted Department of Treasury personnel in Washington, D.C., and the United States Marine Corps to advise them of the action taken against plaintiff. The communication to the Marine Corps led to the seizure of plaintiff, and the search of his vehicle, immediately upon his arrival at the South Carolina base. While in custody, plaintiff was subsequently transported to a nearby Army mental hospital for evaluation. There, plaintiff claims he was detained for two days until he was cleared to return to active duty at his reservist position.

His mental clearance by the Army psychiatrists did not, however, convince defendants of plaintiff's mental stability and nonaggressive tendencies toward them. On August 6, 1982, FLETC officials notified plaintiff that he was being placed on indefinite and involuntary sick leave status pending an examination by a civilian psychiatrist. A notice to the effect that plaintiff was being placed on indefinite sick leave status was posted by FLETC officials and viewed by other employees at FLETC. Plaintiff also claims that his desk was searched without his permission on August 9, 1982.

After serving out his remaining temporary duty in the military without further incident, plaintiff returned to Brunswick. He underwent another psychiatric evaluation and was again found to be normal in all respects. On October 14, 1982, Metz was notified that he was to return to work but would be assigned to another instructional program. This notification, however, was countermanded by a letter from Graves dated October 20, 1982. This letter notified plaintiff that FLETC intended to terminate him based on the threatening statements he allegedly made to his co-workers and at the August 3, 1982, meeting. The letter advised plaintiff of the full panoply of administrative procedures available to him to utilize in contesting his termination. Counsel for Metz responded with a letter addressed to Graves that charged defendants with a conspiracy designed to force plaintiff's resignation from federal employment.

Upon consideration of the response of Metz's lawyer and the evidence of the purported life-threatening statements attributed to plaintiff, Metz was notified of his termination from FLETC by letter dated November 10, 1982. The decision to terminate was made by defendant McCann. McCann's notification letter also delineated plaintiff's right to appeal the decision to the Merit System Protection Board.

Rather than relying solely on the Merit Board appeals process, plaintiffs filed the instant lawsuit on November 11, 1982. Count I of the complaint sets forth plaintiffs' Bivens claims by alleging constitutional deprivations under the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the Constitution.² Count II of the complaint launches a due process attack on the termination decision itself. In this regard, plaintiff claims that the termination decision by McCann was a pretextual formality in that McCann was predisposed to decide against plaintiff. Finally, Count III of the complaint enumerates the common law torts of false imprisonment, false arrest, defamation, malicious prosecution and invasion of privacy as further grounds for imposing liability on the defendants. The plaintiffs invoke the Court's pendent jurisdiction over these claims.

In response to this action based upon Bivens, the defendants, by motions to dismiss, have interposed a number of defenses. Defendants argue that the federal claims, which purport to arise directly under various constitutional amendments, cannot be pursued in a Bivens-type action for damages. The defendants also request that, in the event the Court finds itself without jurisdiction to entertain plaintiffs' claim under Bivens, the Court decline to exercise its pendent jurisdiction over the state tort claims. The Court now turns to analyze the availability of relief to the plaintiffs in light of the defenses raised.

I. Bivens Claims

The federal question jurisdiction of federal courts was significantly expanded in the watershed case of Bivens v. Six Unknown Narcotics Agents, supra. In Bivens, the Supreme Court established the independent right to sue federal officers who have violated a person's constitutional rights.³ In subsequent cases, the Court enumerated two situations where this right of action can be defeated:

The first is when defendants demonstrate "special factors counselling hesitation in the absence of affirmative action by Congress." Bivens, 403 U.S., at 396 91 S.Ct. at 2004; Davis v. Passman, 442 U.S. 228, 245 99 S.Ct. 2264, 2276, 60 L.Ed.2d 846 (1979). The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Bivens, supra at 397 91 S.Ct. at 2005; Davis v. Passman, 442 U.S., at 245-247 99 S.Ct. at 2276-78.

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