Pope v. Bond

• Decision Date: 05 August 1986
• Docket Number: Civ. A. No. 84-2922.
• Citation: 641 F. Supp. 489
• Parties: James C. POPE, Plaintiff, v. Langhorne BOND, et al., Defendants.
• Court: U.S. District Court — District of Columbia

641 F. Supp. 489

James C. POPE, Plaintiff, v. Langhorne BOND, et al., Defendants.

Civ. A. No. 84-2922.

United States District Court, District of Columbia.

August 5, 1986.

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Robert Fleishman, Stephen A. Fennell and Shawn C. Conway, Steptoe and Johnson, Washington, D.C., for plaintiff.

Austin J. Doyle, Jr., Washington, D.C., for defendant Helms.

Philip A. Lacouara and Andrew T. Karron, Hughes, Hubbard and Reed, Washington, D.C., for defendants Onstad, Weithoner, Rock and Driscoll.

Scott T. Kragie, Stuart H. Newberger, Asst. U.S. Attys., Civil Div., Washington, D.C., for defendants Bond, Eckert, Walk, Howe and Forrester.

MEMORANDUM

FLANNERY, District Judge.

This matter is before the court on both the motions of the Federal Aviation Administration and the individual defendants to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

I. Background

Plaintiff is a former official in the Office of General Aviation of the Federal Aviation Administration ("FAA"). Plaintiff is suing the FAA and various present and former FAA officials in their individual and official capacities. During the 1970's, plaintiff served as Chief of the Industry/Government Liaison Division within the FAA headquarters Office of General Aviation. Plaintiff acted as a consumers' advocate and an ombudsman for members of the general aviation community, analyzing every major FAA research and development program affecting general aviation.

Plaintiff seeks compensatory and punitive damages against defendants for allegedly conspiring to silence plaintiff and ultimately to force his withdrawal from federal service. Specifically, plaintiff alleges that defendants retaliated against him for his public advocacy of an airborne collision system ("ACAS") manufactured by the Honeywell Corporation, known as the "AVOIDS" system. Plaintiff had contended that the AVOIDS system would provide mid-air collision protection for airplanes superior to and at a lower cost than a ground-based collision avoidance system being developed in-house by the FAA. Plaintiff contends that he was forced to accept a transfer to Seattle in 1979 and ultimately forced to withdraw from federal service after he began disclosing evidence of alleged FAA mismanagement and the danger of public safety created by FAA's refusal to support or approve the AVOIDS system. Plaintiff spoke out within FAA, to aviation trade journals and consumer groups, and eventually in 1980 to CBS's "60 Minutes". For this, plaintiff says FAA officials harassed him by, inter alia, subjecting him to excessive scrutiny and criticism, alternatively assigning him no work and then too much work, and imposing on him a series of minor disciplinary actions. Plaintiff asserts that from the emotional distress he was caused by defendants' conspiratorial harassment, he had to receive psychiatric treatment. On August 10, 1981, plaintiff went on sick leave from which he never returned to the FAA. On September 20, 1981, plaintiff was admitted to a psychiatric hospital.

On December 16, 1981, plaintiff received a notice of removal from the FAA, effective December 18, 1981. Plaintiff contested the removal in an appeal to the Merit Systems Protection Board ("MSPB") on January 2, 1982. A hearing on the merits was scheduled for August 18, 1982, but on August 16, 1982, the FAA approached plaintiff's counsel with a proposal to rescind the removal action. Plaintiff applied for and received approval for disability retirement and worker's compensation benefits on the grounds that his illness was job-related. The MSPB proceeding was then dismissed on October 13, 1982.

Plaintiff then filed a complaint in this court on September 19, 1984. Plaintiff alleged that there was a conspiracy of FAA officials to silence plaintiff and ultimately to force his withdrawal from federal service. Further, following the recision of his removal and his recuperation, FAA officials thwarted his attempts to return to FAA employment. Finally, plaintiff alleges that the FAA's actions cast a stigma upon plaintiff's reputation which hindered his efforts to obtain employment outside of FAA.

The original defendants moved to dismiss plaintiff's complaint. On June 20, 1985, this court dismissed some of plaintiff's claims including those related solely to the FAA's attempt to remove him in 1981. Pope v. Bond, 613 F.Supp. 708 (D.D.C. 1985) (hereinafter cited as "Pope v. Bond I"). The court found that plaintiff had failed to exhaust his administrative remedies regarding the removal, but that since there were no meaningful administrative remedies for the claims regarding harassment and retaliation, these claims were properly before the court.

On January 28, 1986, this court permitted plaintiff to file a second amended complaint. Pope v. Bond, C.A. 84-2922, Mem. & Order (D.D.C. Jan. 28, 1986) (hereinafter cited as Pope v. Bond II"). This amended complaint states in greater specificity the alleged conspiracy by defendants in violation of plaintiff's First and Fifth Amendment rights. Further, it adds claims under 42 U.S.C. §§ 1985(1) & (3) and under 5 U.S.C. § 552a (Privacy Act). Finally, the amended complaint added individual defendants. The original complaint named as individual defendants Langhorne Bond (FAA Administrator from 1977 to 1981), Roland Eckert (Special Assistant to FAA Administrator from January 1978 to 1980), Christian Walk (Director of FAA's Northwest Region from 1977 to 1980), Jonathan Howe (FAA Deputy Chief Counsel from 1978 to 1980), and Michael Forrester (Chief of Appraisal and Planning Staff in the FAA's Northwest Region from 1980 to 1982). The new complaint added individual defendant Clark Onstad (FAA General Counsel from 1977 until 1981) and three career FAA individual defendants who are still with the FAA: Charles Weithoner (FAA Associate Administrator for Administration), Donald Rock (FAA Director of Personnel and Training), and Lionel Driscoll (FAA Chief of Labor Relations Branch of the Personnel Management Operations Division). J. Lynn Helms (FAA Administrator from 1981 to 1984), an original defendant, was dismissed from the case because of a pending bankruptcy action in Connecticut but was brought back into the case after the lifting of the bankruptcy stay.

By April 15, 1986, defendant FAA, defendant Helms, defendants Bond, Eckert, Walk, Howe, and Forrester, and defendants Onstad, Weithoner, Rock and Driscoll separately moved to dismiss the claims brought against them. On May 15, 1986, plaintiff responded to defendants' motions in a single memorandum. On May 30, 1986, most defendant groups separately replied. Oral argument was heard June 6, 1986. Defendants Onstad, Weithoner, Rock, and Driscoll and plaintiffs sought leave to file supplemental memorandums.

II. Discussion

Defendants have suggested late in their pleadings that their motion might be dealt with as one for summary judgment rather than as a motion to dismiss. This court declines to do so. Discovery was stayed in this matter for the purpose of considering defendants' dismissal claims; changing the posture of the motion now without giving plaintiff a chance to conduct some discovery would be unfair and inappropriate.

On a motion to dismiss, the factual allegations of the complaint must be taken as true and any doubts concerning the sufficiency of the claim must be resolved in favor of the nonmovant party. Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C.Cir. 1983). A motion to dismiss is viewed with disfavor and should not be granted unless it appears beyond a doubt that the plaintiff can provide no set of facts in support of his claim which would entitle him to relief. Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985).

The grounds for dismissal set forth by the defendant groups differ, but all fit within five basic issues. These are that: (1) the court should reconsider its ruling in Pope v. Bond I that matters other than plaintiff's removal are properly before the court; (2) the statute of limitations has run as to most of the acts alleged in the complaint and those for which it has not are not a proper basis for this suit; (3) plaintiff has failed to state cognizable claims under 42 U.S.C. § 1985(1) & (3) and 5 U.S.C. § 552a; (4) all of the individual defendants are entitled to qualified immunity for the acts alleged in the complaint; and (5) plaintiff's request for injunctive relief is moot or fails to state a cognizable claim. Each issue will be discussed separately.

A. Pope v. Bond I Reconsideration

In response to plaintiff's first amended complaint, defendants argued that the comprehensive scheme of administrative and judicial remedies available to plaintiff against FAA "counsel hesitation" against allowing a supplemental claim for damages against individual defendants. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Pope v. Bond I, this court found that supplemental damages were appropriate, but agreed with defendants that Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) precluded a Bivens supplemental remedy for the allegedly improper removal of plaintiff, since administrative remedies available in the case of removal had not been exhausted. Lesser allegedly improper personnel actions leading up to the removal ("prohibited personnel actions"), however, were found not to have a meaningful administrative remedy, and were therefore properly before this court.

Defendants raise three points in seeking reconsideration of this ruling. First, this court acknowledged in Pope v. Bond I that plaintiff could seek injunctive relief against the FAA for interference with his future employment rights. Plaintiff therefore has a meaningful remedy, precluding the need for a Bivens action against the individual defendants. Second, the MSPB had before it all the "lessor personnel actions" when plaintiff appealed the...