Schowengerdt v. U.S.

• Decision Date: 06 September 1991
• Docket Number: 90-55191,Nos. 89-55733,s. 89-55733
• Citation: 944 F.2d 483
• Parties: 57 Empl. Prac. Dec. P 41,054, 7 IER Cases 462 Richard Neal SCHOWENGERDT, Plaintiff-Appellant, v. UNITED STATES of America; Department of the Navy; John F. Lehman, Jr., Sec. of the Navy; General Dynamics Corporation; C.W. Kessel; K.D. Tillotson; Carl W. Jensen; Richard S. Day, Defendants-Appellees. Richard Neal SCHOWENGERDT, Plaintiff-Appellant, v. UNITED STATES of America; Department of the Navy; John F. Lehman, Jr., Sec. of the Navy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 483

944 F.2d 483

57 Empl. Prac. Dec. P 41,054, 7 IER Cases 462

Richard Neal SCHOWENGERDT, Plaintiff-Appellant, v. UNITED STATES of America; Department of the Navy; John F.

Lehman, Jr., Sec. of the Navy; General Dynamics

Corporation; C.W. Kessel; K.D. Tillotson; Carl W. Jensen;

Richard S. Day, Defendants-Appellees.

Richard Neal SCHOWENGERDT, Plaintiff-Appellant, v. UNITED STATES of America; Department of the Navy; John F.

Lehman, Jr., Sec. of the Navy, Defendants-Appellees.

Nos. 89-55733, 90-55191.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 8, 1991.

Decided Sept. 6, 1991.

Richard Neal Schowengerdt, pro se.

Donna R. Eide, Asst. U.S. Atty., Nancy P. McClelland, Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendants-appellees.

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

Before CANBY and RYMER, Circuit Judges, and WARE, ^* District Judge.

CANBY, Circuit Judge:

Richard Schowengerdt appeals from summary judgments dismissing his civil rights claims brought under 42 U.S.C. § 1983. Schowengerdt's claims arise out of the search of his office, where he worked for the Navy as a civilian military engineer on classified projects, and out of his subsequent discharge from the Naval Reserve. We affirm.

I. Background

A. Underlying facts ¹

At the time of the events giving rise to this action, Schowengerdt was employed by the Navy as a civilian engineer to work on secret weapons-related projects, for which he had a "secret" security classification. Schowengerdt was also a Chief Warrant Officer in the Naval Reserve, assigned to a missile test center.

The Naval Industrial Ordinance Plant in Pomona, California, where Schowengerdt worked, houses a wide variety of projects of secret and top-secret military weapons design, manufacture and testing. The plant is owned by the Navy, but operated by General Dynamics Corporation, which provides security services for the plant. Extensive security precautions are taken at the facility. Those precautions include frequent scheduled and random searches of work spaces by security guards. General Dynamics also employs investigators to pursue more detailed investigations into possible instances of compromised security which come to their attention. To facilitate searches, security agents have access to keys to all offices and office furniture.

Schowengerdt was well aware of these security procedures, having been employed at this facility for thirteen years. He had personally observed his office being searched on numerous occasions to ascertain his compliance with procedures relating to the proper storage of classified documents. Also, all employees, including Schowengerdt, were required to attend periodic security briefings, at which they were informed of all security procedures. In those briefings, they were made aware that the Navy's security concerns extended beyond physical protection of classified documents, and included concerns that employees not divulge classified information to inappropriate sources. That concern encompassed a variety of conditions which might compromise an employee's ability to maintain security, including those which might make an employee susceptible to blackmail.

On August 9, 1982, Charles Kessel, who was a security investigator for General Dynamics, searched Schowengerdt's office, without his consent or a search warrant, after Schowengerdt had left work for the day. That search was precipitated by an anonymous tip, stating that Schowengerdt's office contained material "of interest to the security department." Kessel's search was confined to the credenza in Schowengerdt's office, which is where the informant said that the material would be found. The parties dispute whether the doors to Schowengerdt's office and to the credenza were locked.

In the credenza, Kessel found and seized a manila envelope marked with the following notations on the outside: "Strictly Personal and Private. In the event of my death, please destroy this material as I do not want my grieving widow to read it." The envelope contained correspondence and photographs indicating Schowengerdt's involvement in heterosexual and bisexual activities. The correspondence indicated that Schowengerdt solicited sexual encounters through want ads in "swingers" magazines and clubs.

During work hours the next day, when Schowengerdt was momentarily absent, his office was again searched without his consent or a warrant. This search was conducted by Kessel and Carl Jensen, special agent for the Naval Investigative Service, and K.D. Tillotson, the Navy Commanding Officer at the facility. At this search, the agents seized numerous personal items. This second search was authorized by Jensen's supervisor, who agreed with Jensen that no warrant was required because the supervisor believed that government employees did not have a legitimate expectation of privacy in their work spaces.

On the basis of the correspondence contained in the manila envelope, and the envelope's external inscription, Jensen concluded that Schowengerdt fit the profile of a person susceptible to blackmail by hostile intelligence agents. ² Jensen then began an investigation to determine whether Schowengerdt constituted a security risk. He interviewed Schowengerdt, who admitted to being a bisexual. ³ Jensen also obtained Schowengerdt's permission to search his home.

As a result of this investigation, Jensen concluded that there was no evidence that plaintiff had been contacted by a hostile agent or that he was the target of blackmail. Jensen wrote a report of his investigation and transmitted that report to various federal offices responsible for maintenance of security, as well as to Schowengerdt's Commanding Officer in the Naval Reserve.

No action was taken against Schowengerdt by his employer, other than an oral admonishment that he had exercised poor judgment in storing the material in his office. His security clearance and duties remained unchanged. Shortly after this incident, Schowengerdt resigned from his civilian position with the Navy, and obtained employment with a private military contractor. In the process of transferring Schowengerdt's security clearance from government employment to private employment, the agency responsible for establishing and monitoring security clearances inquired of the Navy whether there was any evidence in Schowengerdt's file potentially reflecting adversely on his security status. In response, the Navy (through defendant Day) provided the report of Jensen's investigation. Schowengerdt was ultimately granted the security clearance he sought, but only after a delay of 13 months, caused, in part, by an inquiry into the nature of the earlier investigation.

Upon receiving Jensen's security investigation report, the Naval Reserve commenced discharge proceedings, pursuant to its regulations requiring discharge of homosexuals, including bisexuals. The bases for those proceedings were Schowengerdt's purported statement that he was a bisexual, and his descriptions of his bisexual activities in his seized correspondence. The board of officers convened to hear the case found Schowengerdt's correspondence to constitute an admission that he was a bisexual. Schowengerdt contested the charge, maintaining that he was not a bisexual. He denied describing himself to Jensen as a bisexual, and asserted that his correspondence describing bisexual activity was mere fantasy-writing. The board found Schowengerdt's testimony to be not credible and recommended that he be discharged under honorable conditions. He was subsequently so discharged.

B. Procedural History

Schowengerdt filed this action against the United States, the Department of the Navy, and their employees involved in the search and ensuing investigation. He also sued General Dynamics and its employee Kessel. He charged that the search of his office and credenza and the disclosure of his sexual activities that resulted from the subsequent investigation violated his rights to privacy, freedom of association and speech, and to freedom from unreasonable searches and seizures, as protected by the first, fourth, fifth, sixth and ninth amendments, as well as various federal statutes. He also charged a conspiracy to violate those rights, and asserted pendent state law privacy and trespass claims. He also challenged his discharge from the Naval Reserve as violating Navy regulations as well as rights protected by the first, fourth, fifth and ninth amendments.

The district court initially dismissed all of Schowengerdt's claims under Fed.R.Civ.P. 12(b)(6). As to those arising out of the search, the district court held that Schowengerdt had failed to allege facts sufficient to establish a reasonable expectation of privacy in his office, desk or credenza, primarily because he was a government employee. The district court dismissed Schowengerdt's claims based on his discharge from the service because he had not yet exhausted his administrative remedies in that regard. Schowengerdt appealed those rulings to this court.

In Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir.1987) ("Schowengerdt I" ), we affirmed the dismissal of Schowengerdt's various statutory claims and state law claims. We remanded the claims arising out of Schowengerdt's discharge from the Naval Reserve, because government counsel acknowledged at oral argument that Schowengerdt had, by then, exhausted his administrative remedies. We reversed the district court's fourth amendment ruling, holding that the district court had erred in concluding that Schowengerdt could not prove an unreasonable search because he was a government employee, and because his desk and credenza were the property of the government. We held that

Schowengerdt would enjoy a reasonable expectation of privacy in areas given over to his exclusive use, unless he was on notice from his employer that searches of the type to which he was...