Schowengerdt v. General Dynamics Corp.

• Decision Date: 30 July 1987
• Docket Number: No. 84-6231,84-6231
• Citation: 823 F.2d 1328
• Parties: , 56 USLW 2131, 2 Indiv.Empl.Rts.Cas. 545 Richard Neal SCHOWENGERDT, Plaintiff-Appellant, v. GENERAL DYNAMICS CORPORATION; C.W. Kessel; K.D. Tillotson; Carl W. Jensen; Richard S. Day; and John Lehman, Secretary of the Navy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1328

823 F.2d 1328

91 A.L.R.Fed. 201, 56 USLW 2131,

2 Indiv.Empl.Rts.Cas. 545

Richard Neal SCHOWENGERDT, Plaintiff-Appellant, v. GENERAL DYNAMICS CORPORATION; C.W. Kessel; K.D. Tillotson;

Carl W. Jensen; Richard S. Day; and John

Lehman, Secretary of the Navy,

Defendants-Appellees.

No. 84-6231.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1986.

Decided July 30, 1987.

Carl B. Pearlston, Jr., Torrence, Cal., for plaintiff-appellant.

Stephen E. O'Neal and Nancy P. McClelland, Los Angeles, Cal., for defendants-appellees.

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

Before FLETCHER, NELSON and HALL, Circuit Judges.

FLETCHER, Circuit Judge:

Schowengerdt appeals the dismissal of his complaint against General Dynamics, a General Dynamics security employee, the Secretary of the Navy, and various Navy personnel for failure to state a claim. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

Schowengerdt seeks declaratory and injunctive relief and money damages against General Dynamics and C.W. Kessel, a General Dynamics security investigator ("private defendants"), Secretary of the Navy John Lehman and Navy personnel Carl Jensen, K.D. Tillotson, and Richard Day ("federal defendants"). Jurisdiction is invoked under, inter alia, 28 U.S.C. Sec. 1331, for claims arising "under the First, Fourth, Fifth, Sixth, and Ninth Amendments to the Constitution, Title 18 U.S.C. Sections 1385, 1702, and 2510-20, and Title 42 U.S.C. Section 1985(3)." The complaint specifically alleges violations of Schowengerdt's rights to privacy, to freedom of association and speech, and to freedom from unreasonable searches and seizures. We read it also as alleging a conspiracy among all defendants to violate those rights. ¹ In addition, the first cause of action also alleges that defendants violated Privacy Act regulations, while the second and third causes of actions allege pendant state-law invasion-of-privacy and trespass claims against the private defendants.

Schowengerdt was employed by the Department of the Navy in a Civil Service engineering position at a Naval Industrial Reserve plant in Pomona, California. He was also a Chief Warrant Officer in the Naval Reserve. General Dynamics provided security services for the plant and employed Kessel as a Security Investigator. The complaint alleges Kessel acted on behalf of and as an agent for, the Navy. Tillotson was Executive Officer and Acting Naval Plant Representative at the plant. Carl Jensen was a special agent for the Naval Investigative Service and Richard Day was Chief of Security at a Naval Engineering Station at Port Hueneme, California.

On August 9, 1982, Kessel entered Schowengerdt's locked office, searched his locked desk and credenza, and seized personal photographs and correspondence that involved sexual matters. On the following day, Kessel and Navy employees Tillotson and Jensen conducted a second search and seized similar items. These searches were carried out without a warrant. Schowengerdt contends that they were not authorized by Naval regulations.

Tillotson and Jensen informed the Postal Service that Schowengerdt was receiving and sending pornographic materials through the mails. They also informed the Naval Reserve that Schowengerdt was involved in sodomy and homosexual activities. Following administrative discharge proceedings, and review by the Secretary of the Navy, Schowengerdt was discharged from the Naval Reserve. During the course of the discharge proceedings, Lehman sent a letter by regular mail to Schowengerdt's home, stating that Schowengerdt was being considered for discharge from the Naval Reserve because of homosexual and bisexual activities. The letter was intercepted and read by Schowengerdt's family.

Approximately five months after the search, Schowengerdt resigned from the Civil Service and took a job in private industry. Schowengerdt alleges that an adverse comment made in a security questionnaire completed by Defendant Day caused his security clearance not to be transferred to his new employer and to be withheld for a period of sixteen months.

The complaint alleges that these acts were an abuse of authority by the defendants and that the search was not authorized by government regulations. It is claimed that the defendants' actions adversely affected Schowengerdt's career, future employment opportunities, reputation and familial harmony, causing him mental anguish, anxiety, insomnia, and emotional distress. The complaint states that "[a]ll Defendants, other than GENERAL DYNAMICS and C.W. KESSEL, are sued in their official governmental capacity."

The private and the federal defendants filed separate motions to dismiss the complaint. The district judge dismissed the constitutional claims because of his finding that Schowengerdt failed to allege facts that established a reasonable expectation of privacy in his desk. The pendant state claims were dismissed for lack of jurisdiction. The district court refused to review Schowengerdt's claim relating to his then pending military discharge because it found that the available administrative remedies had not yet been exhausted. Finally, the court held that Schowengerdt failed to allege facts sufficient to state a claim under 42 U.S.C. Sec. 1985(3); the court did not specifically address Schowengerdt's other statutory claims, but rather simply dismissed all causes of action.

II. STANDARD OF REVIEW

Whether a complaint should be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a question of law subject to de novo review. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 773 (1986). We restrict our review to the contents of the complaint, accepting the material factual allegations as true and construing them in the light most favorable to the appellant. Id. The test we apply is generous to the plaintiff: dismissal for failure to state a claim is improper unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), quoted in Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).

III. DISCUSSION

A. Constitutional Claims for Damages

In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court "established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980). The statutory basis for "Bivens" jurisdiction is 28 U.S.C. Sec. 1331. ² See Bush v. Lucas, 462 U.S. 367, 374, 103 S.Ct. 2404, 2409, 76 L.Ed.2d 648 (1983); Butz v. Economou, 438 U.S. 478, 486, 98 S.Ct. 2894, 2900, 57 L.Ed.2d 895 (1978). The Supreme Court has specifically approved Bivens actions for violations of the Fourth Amendment, Bivens, 403 U.S. at 397, 91 S.Ct. at 2005, the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 248-49, 99 S.Ct. 2264, 2278-79, 60 L.Ed.2d 846 (1979), and the Eighth Amendment, Carlson, 446 U.S. at 19, 100 S.Ct. at 1472. This court has extended the reach of Bivens to alleged violations of the First Amendment. Gibson, 781 F.2d at 1342.

A Bivens cause of action may be defeated if "special factors counsel[ ] hesitation in the absence of affirmative action by Congress," Bivens, 403 U.S. at 396, 91 S.Ct. at 2004; Carlson, 446 U.S. at 18, 100 S.Ct. at 1471, or if "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." Id. at 18-19, 100 S.Ct. at 1471 (citing Bivens, 403 U.S. at 397, 91 S.Ct. at 2005).

Schowengerdt's complaint invokes 28 U.S.C. Sec. 1331 as the source of district court jurisdiction and alleges constitutional violations by federal agents. ³ We examine it to determine whether Schowengerdt might be able to prove under the allegations of his complaint some set of facts entitling him to relief, having in mind that his claim might be defeated by the existence of "special factors" or by an alternative remedy explicitly provided by Congress.

We take the district court's conclusion that Schowengerdt had no reasonable expectation of privacy in his desk as a determination by the court that it was factually impossible for Schowengerdt to prove the existence of a constitutional violation. We examine first whether facts could be proved that support Schowengerdt's claim that his constitutional rights were violated and, second, whether, in this case, there exist special factors that nonetheless would preclude recovery under Bivens. ⁴

1. The Existence of Constitutional Violations

The district court ruled that Schowengerdt could not have had a reasonable expectation of privacy in his desk primarily because the desk was the property of his employer. ⁵ Fourth Amendment privacy interests do not, however, turn on property interests. That notion was put to rest by the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In holding that protection against unreasonable searches and seizures guaranteed by the Fourth Amendment depends upon the existence of a "reasonable expectation of freedom from governmental intrusion," the Court rejected the contention that those who seek to invoke Fourth Amendment protections must have a property right in the area searched. Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968) (citing Katz, 389 U.S. at 352, 88 S.Ct. at 511).

The reasonableness of a government employee's expectation of privacy in his...