# Appendix — Schowengerdt v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2218%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 503 U.S. 951 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING, IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILT. BE TSSUED, \ _ T- WU IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1991 No. RICHARD NEAL SCHOWENGERDT, PETITIONER Vv. THE UNITED STATES OF AMERICA, ET. AL. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPENDIX A APPENDIX B APPENDIX C APPENDIX D APPENDIX E APPENDIX F APPENDIX G APPENDIX H INDEX TO APPENDICES Opinion of the Ninth Circuit Court of Appeals filed 6 September 1991 District Court Opinions, Orders, Findings of Fact, and Conclusions of Law Opinion of the Ninth Circuit Court of Appeals filed 30 July 1987 Petitioners Fourth Amended Complaint dated 25 February 1988 Excerpt from Security Services Agreement Between General Dynamics/Pomona Division And the Naval Plant Reresentative Office For Security Support Services 27 Apr 1982 Excerpt from Naval Investigative Service dated 16 September 1982 Excerpt from Defense Investigative Service Report dated 22 August 1983 Excerpt from Petitioner's Performance Record OQ (7 APPENDIX A Opinion of the Ninth Circuit Court of Appeals filed 6 September 1991 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD NEAL SCHOWENGERDT, Plaintiff-Appellant, Vv. Untrep STATES OF AMERICA, DEPARTMENT OF THE Navy; JOHN F. LEHMAN, JR., Sec. of the Navy; GENERAL DyNaMIcs CORPORATION, C.W. KesseL; K.D. TILLoTson, Cari W. Jensen; Ricnarn S. Day, Defendants-Appellees. A RICHARD NEAL SCHOWENGERDT, Plaintiff-Appellant, Vv. Untrep STATES OF AMERICA, DEPARTMENT OF THE NAVY; Joun F. LEHMAN, Jr., Sec. of the Navy, Defendants-Appellees. | No. 89-55733 D.C. No. CV-83-8007-AAH No. 90-55191 D.C. No. CV-83-8007-AAH OPINION Appeal from the United States District Court for the Central District of California A. Andrew Hauk, District Judge, Presiding Argued and Submitted March 8, 1991—Pasadena, California Filed September 6, 1991 12451 a Ha ee 12452 ScHowENcERDT v. Unrrep States Before: William C. Canby, Jr. and Pamela Ann Rymer, Circuit Judges, and James Ware,* District Jduge. Opinion by Judge Canby SUMMARY Constitutional Law Affirming a district count grant of summary judgment, the court of appeals held that a Navy civilian engineer with a Secret” security classification had no reasonable expectation of privacy in his office, desk or credenza requiring a search warrant before personal items were seized. Appellant Richard Neal Schowengerdt was employed the Navy as a civilian engineer to work on etn ss related projects, for which he had a “secret” secunity classifi- cation. Extensive security precautions are taken at the facility including the search of employees’ offices and office furni- ture. Employees knew of the security procedures and con- cems. Acting on a tip, an investigator searched Schowengerdt's office without his consent Or a search war- rant. Documents were found in an envelope in his credenza indicating involvement in bisexual and heterosexual activites. More items were seized during a second search. Schowengerdt’s Supervisor concluded that, on the basis of the lems seized, Schowengerdt fit the profile of a person suscep- uble to blackmail by hostile intelligence agents. Information reflecting adversely on Schowengerdt’s security status was made known when he obtained employment with a private military contractor. Subsequenuly, Schowengerdt was dis- charge from the Navy pursuant to its regulations requiring *The Hooorable James Ware, United States Distnct Jud Northern Distnict of Calfornia, sitting by designation er 2,3 ScHowenceRpt v. Unrrep STATES 12453 discharge of homosexuals, including bisexuals. Schowengerdt filed suit against the Navy under Section 1983, alleging viola- tions of his civil rights. The district court granted summary judgment in favor of the Navy, concluding that no warrant was required for the searches. {1] The court agreed that the operational realities of Schowengerdt’s work place precluded his having an objec- tively reasonable expectation of privacy in his office, desk or credenza. [2] Whether locked or not, Schowengerut’s office was searched daily, in his absence, by guards specifically looking for security violations. The primary focus of those searches was on the proper storage of classified documents, for which employees also checked each other. [3] In this peculiarly unprivate work environment, Schowengerdt had no reasonable expectation of privacy in his desk and credenza, locked or unlocked. [4] Schowengerdt was on notice from his employer that searches of the type to which he was subjected might occur from time to time for work-related purposes. On that ground, the court affirmed the grant of summary judg- ment. [5] Schowengerdt’s claims stemming from his discharge from the Naval Reserve were also meritless. The first amend- ment was not violated because he was not discharged for writ- ing about bisexuality but rather for being a bisexual, of which his purely private correspondence was evidence. Neither did his discharge violate due process because he was afforded abundant opportunity to object to his discharge and to have his objections heard by an administrative board. [6] Schowengerdt’s substantive due process argument, based on a might of privacy, was also meritless. [7] Schowengerdt’s argument that his discharge was arbitrary and capricious because he was never proven to be a bisexual was also merit- less. The discharge board made an express adverse credibility finding in that regard, and found him to be a bisexual. That determination was supported by substantial evidence. 12454 ScHOWENGERDT v. Unrrep States COUNSEL Richard Neal Schowengerdt, Pro Se, Lak Californi for the plaintiff-appellant. — ‘ae Donna R. Eide, Assistant United Siates Attomey: °s : mey;, Nancy P. McClelland, Gibson, Dunn & Crutcher, Los Angeles, Califor. nia, for the defendants-appellees. OPINION CANBY, Circuit Judge: Richard Schowengerdt appeals from j Richa chowenge summary judgments dismissing his civil rights claims brought under 42 USC. § 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 is- charge from the Naval Reserve. We affirm. a I. Background A. Underlying facts' At the time of the events givi i i giving rise tw this action, Schowengerdt was employed by the Navy as a civilian engi- neer to work On secret weapons-related projects, for which he had a “secret” security classification. Schowengerdt was also a Chief Warrant Officer in th i edie ware in the Naval Reserve, assigned to a The Naval Industrial Ordinance Plant in Po i mona, Califor- nia, where Schowengerdt worked, houses a ak sale "The reievant facts have been related in this court's earlier ruling in this action, Schowengerdt v. General Dynamics C 823 F be 2d 1 1987) (*“Schowengerdi I"). For convenience, = repeat ronda ss \n _> ScHowencerpt v. Untrep STATES 12455 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 pur- sue more detailed investigations into possible instances of compromised security which come to their attention. To facil- itate 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 numer- ous 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 infor- mation to inappropriate sources. That concem 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 pre- cipitated by an anonymous tip, stating that Schowengerdt’s office contained materia! “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 12456 ScHOWENGERDT v_ Unrrep STATES nar s Schowengerdt’s office and to the credenza were 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.” bisexual activities. The corres indi es. pondence indicated Schowengerdt Solicited sexual encounters through want oy “s Swingers magazines and clubs. pe tha rg non pry ssid believed that government not have a legiti j ro ag egiumate expectation of Plivacy in On the basis of the Correspondence contained in the manila envelope, and the envelope’s external inscription, Jensen con- Cluded that Schowengerdt fit the profile of a person Suscepti- ble to blackmail by hostile intelligence agents.” Jensen * d ~ \o ScHOWENGERDT v. Unrrep STATEs 12457 began an investigation to determine whether Schowengerdt constituted a security risk. He interviewed Schowengerdt, who admitted to being a bisexual.” 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 vari- ous 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 exer- cised 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 pri- vate military contractor. In the process of transferring Schowengerdt’s security clearance from goverment employ- ment to private employment, the agency responsible for estab- lishing and monitoring security clearances inquired of the Navy whether there was any evidence in Schowengerdt’s file potentially reflecting adversely on his security stams. In response, the Navy (through defendant Day) provided the report of Jensen's investigation. Schowengerdt was ultimately granted the security clearance he sought, bet 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, includ- *Schowengerdi denied making this admission, but the Navy Discharge Board ruled against him, making an adverse credibility finding. The dis- tinct court accepted the Board's finding. 12458 Saiowencerpt v. Usrrep STATES ing bisexuals. The bases for those proceedings we Schowengerdt’s purported statement that he was a Seen Charge, maintaining that he was not a bisexual. He denied descnibing himself to Jensen as a bisexual, and asserted that his correspondence describing bisexual activity was mere charged. B. Procedural History Schowengerdt filed this action against the Uni ted States, os Department of the Navy, and their employees involved in search and ensuing investigation. He also sued General Dynamics and its employee Kessel. He charged that the Speech, and to freedom from unreasonable searches i and sei- ZUres, as protected by the first, fourth, fifth, sixth and ninth amendments, as well as various federal statutes. He also \ ScHOWENGERDT Vv. Untrep States 12459 dismissed Schowengerdt’s claims based on his discharge from the service because he had not yet exhausted his administra- tive 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 dis- missal 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 rem- edies. We reversed the district court’s fourth amendment rul- ing, 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 subjected might occur from time to time for work-related purposes. Schowengerdt I, 823 F.2d at 1335 (foomote omitted). We remanded for factual findings “relevant to the existence and scope of policies and practices or regulations relating to searches at the Naval facility.” Jd. Finally, we stated that: (I]f it is found that Schowengerdt had a reasonable expectation of privacy, under O’Connor v. Ortega, 107 S.Ct. 1492 (1987), a warrantless search of his office nevertheless could be legal if the search was both work-related — that is, carried out to retrieve the employer’s property or to investigate work- 12460 SGHOWENGERDT v. Untrep States related misconduct — and ‘reasonable’ under the circumstances. Id. On remand, the district court granted summary judgment dismissing all of Schowengerdt’s claims. The district count rejected Schowengerdt’s fourth amendment claim, finding that, because of the extensive security procedures in place at the facility, he had no reasonable expectation of privacy in his Office, desk or credenza. Thus, the district court concluded that no warrant was required for these searches.‘ The district court also granted summary judgment in favor of the Navy on Schowengerdt’s constitutional claims chal- lenging his discharge on the ground of his bisexuality. The district court held that: the first amendment was not violated because Schowengerdt’s correspondence was not a matter of public concern, nor was he discharged for exercising his speech; the fourth amendm nt was not violated because Schowengerdt’s discharge w nota consequence of an illegal search; the fifth amendment’, procedural protections were not violated because he was accorded an ample pre-termination hearing; and Schowengerdt’s substantive due process or equal protection claims did not survive the deferential review accorded to the Navy's action in discharging him. This appeal followed. Il. Discussion Schowengerdt argues that the district court committed numerous errors. We disagree. We have reviewed all of “Because we affirm the district court's ruling that Schowengerdt had 00 expectation of privacy in the areas searched, we do not address the district court's alternanve rulings that the search was a reasonable, work-related search, and that the defendants conducting the search were enntled to qualified immunity. 7 i; iy. S i, SCHOWENGERDT Vv. UntreD STATES 12461 Schowengerdt’s arguments and find them meritless. We will discuss here only those arguments regarding the legality of the search of his office, his conspiracy claim, and his claims arising out of his discharge from the Naval Reserve. A. Fourth Amendment [1] On remand from Schowengerdt I, the district court was presented with extensive uncontroverted evidence relevant to Schowengerdt’s expectation of privacy. The district court concluded that “the operational realities” of Schowengerdt’s work place precluded his having an objectively reasonable expectation of privacy in his office, desk or credenza. After de novo review of that conclusion, United States v. McCon- ney, 728 F.2d 1195, 1203 (9th Cir.), cert. denied, 469 US. 824 (1984), we agree. Schowengerdt may have had a subjec- ve expectation of privacy in his credenza, or the manila envelope i it, but that expectation was not objectively rea- sonable. All employees at this facility were well aware of its extremely tight security procedures. Upon entering and leav- ing the building, and in the innermost recesses of their offices, employees were constantly being searched and surveilled for compliance with security precautions in a manner that would be considered unduly invasive in a more conventional work place. [2] Whether locked or not, Schowengerdt’s office was searched daily, in his absence, by guards specifically looking for security violations. The primary focus of those searches was on the proper storage of classified documents, for which employees also checked each other. Schowengerdt himself testified that, when it was his turn to search his fellow employees’ offices, he would pull on drawers to see whether they were locked and, if they were not, he “might be inclined to look inside and see if there were any documents lying loose, classified documents.” 12462 Scsowencennt v. Untrep STATES [3] There is conflicting evidence offered as to whether Schowengerdt’s credenza was locked at the ime of the searches in question. This is not a dispute of material fact, however, as Schowengerdt was well aware that secunty investigators had access to duplicate keys should they wish to pursue an investigation into his locked desk or credenza. In this peculiarly unprivate work environment, Schowengerit had no reasonable expectation of privacy in his desk and cre- denza, locked or unlocked. Schowengerdt argues that this constant surveillance was confined to enforcing compliance with regulations for secur- ing classified documents, which were clearly marked as such, and that other materials that were clearly personal were not subject to search. Uncontroverted evidence refutes his argu- ment. Schowengerdt and his fellow employees were well aware that the Navy was extremely concemed about the var- ety of ways by which classified information could be divulged to inappropriate sources, other than through the loss or theft of inadequately secured documents.’ They were also aware that the facility employed security investigators, as disunct from security guards, whose job it was to investigate possibil- ities of such breaches of security. In er an ge investi were authorized to “look into more rg a ait wu look into, . . . [into] details that a guard would not be expected to look into, trying to determine what actually happened ip 8 situation.” Schowengerdt knew that these investigators had access to keys to his office, desk and credenza. [4] Given that peculiar environment, Schowengerdt did not have a reasonable expectation of privacy in his office or in his jocked credenza, or in a manila envelope stored in the cre- "Eg. Schowengerdt testified that the Navy was concermed tat employ- ces might be tempted to sell classified information, or mgbt be euther induced or blackmailed into divulging informavon as a result of a roman tic or sexual liaison. TL a (2,72 ScHOWENGERDT v. Unrrep STATES 12463 denza which indicated on its exterior that it contained infor- mation which he wanted kept secret from his wife. He should have known that his credenza, even if locked, was subject to search, and that the inscnpuon on the manila envelope would serve only to trigger the curiosity of an investigator, or any fellow employee, trained to be alert w possibilities of blackmail.* In short, Schowengerdt was “on notice from his employer that searches of the type to which he was subjected might occur from time to time for work-related purposes.” Schowengerdt I, 823 F.2d at 1335. On that ground, we affirm the district court’s grant of summary judgment dismissing Schowengerdt’s fourth amendment claim. B. Conspiracy Schowengerdt has maintained throughout this litigation that the search of his office was the resuit of a conspiracy on the part of his superiors to retaliate against him for having gone “over their heads” with a cost-saving suggestion that they had earlier rejected. To prevail on this claim Schowengerdt must “Schowengerdt’s own stalements in his briefs on appeal before this court nearly concede this pomt Duplicate keys are for necessary work-related matters m the absence of the employee and when a cnitical need arises to enter his desk or file cabinet. Keys are not intended for the purpose of browsing around to see what you can find out about an employee and they are not intended for intelligence specialists to gain pri- vate information about employees without a warrant This is not to preclude an investigation when it is warrantied, i.e. when an indication that a security compromise has been made or is being contemplated by an employee because of some reason which has come to their atiention os there is evidence of thefi, etc. (Empha- sis added.) That Kessel’s mitial search was “warranicd” is also conceded: While plaintiff agrees that Kessel was compelled to investigate to the extent of an initial examination of the maternal in the manila covelope, the investigation should have ended there under the rules in force at the Pornoaa facility. 12464 Schowencerot v. Unrrep States show that the defendants agreed among themselves to act against him unlawfully, or for an unlawful purpose. Vieux v. East Bay Regional Park Dist., 906 F.2d 1330, 1343 (9th Cir.), cert. denied, 111 S.Ct. 430 (1990). To survive the defendants’ motion for summary judgment, Schowengerdt must provide specific evidence establishing those facts. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Schowengerdt has not done so. He has only repeated the allegations in his complaint, based on inference and speculation. The district court prop- erly granted summary judgment on this claim. C. Discharge from the Naval Reserve for Bisexuality {5} Schowengerdt’s claims stemming from his discharge from the Naval Reserve are also meritless. The first amend- ment was not violated because he was not discharged for writ- ing about bisexuality but rather for being a bisexual, of which his purely private correspondence was evidence.’ See Pruitt v. "Schowengerdi was discharged pursuant to Secretary of the Navy Instructions (SBCNAVINST) 1900.9D. They provide, in relevant part 4. Policy Homosexuality is incompatible with mulitary services --++ The presence im the military environment of persons «ho engage @ bomosexual conduct or who, by their statements dem- onstrate & propeasity to engage in homosexual conduct, seriously impairs the accomplishment of tae military mission... Such persons shall normally be separated from the naval service in accordance with this structions. 5. Definitions. b. Bisexual means a person who engages iw. desires to engage in, or intends to engage in homosexual and betero- sexual acts. 7. Bases For Admuustrative Separation. —_—_——-_ _— 4,16 ScHOWENGERDT v. Untrrep STATES 12465 Cheney, No. 87-5914, slip op. 11295, 11302-05 (9th Cir. Aug. 19, 1991); Johnson y. Orr, 617 F.Supp. 170, 178 (E.D.Ca. 1985), aff d, 787 F.2d 597 (9th Cir. 1986). His discharge did not violate procedural due Process because he was afforded abundant Opportunity to object to his discharge and to have his objections heard by an administrative board, before as well as after termination. See C, leveland Board of Education v. Loudermill, 470 U.S. 532, $43 (1985). [6] Schowengerdt’s substantive due process argument, based on a right of Privacy, is also meritless. We have rejected such a challenge to regulations nearly identical to those requiring Schowengerdt’s discharge here, and we did so under a higher level of scrutiny than is Currently required. See Beller v. Middendorf, 632 F.2d 788, 809 (1980), cert. denied, 454 U.S. 855 (1981) (holding the Naval policy of mandatory discharge of homosexuals does not violate substantive due process, under a level of scrutiny “somewhere between” the two standards of “rational basis” and “strict” scrutiny.) See also High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (stating that Bowers v. Hardwick, 478 U.S. 186 (1987), “overruled” Beller, as applying too high a level of scrutiny). Thus, Schowengerdt’s argument for a substantive due Process violation here is pre- cluded by Beller, Hardwick, and High Tech Gays* b. A member shall be Separated under this instruction if, but (2) The meme: has stated that he or she is a homosex- ual or bisexual unless there is a further finding that the member is not homosexual or bisexual. "We do oot address the allegation of Schowengerdt’s complaint that the Navy regulatons violate equal protection. An equal protection objection 1989) (ea banc) (Norris, Concurmng), cert. denied, 111 S.C. 384 (1990), 12466 Scnowencernr v. Unrrep States [7] Schowengerdt’s argument that his discharge was arbi- trary and capricious because he was never proven to be a bisexual is also meritless. Schowengerdt denies that he is a bisexual. He asserts that his correspondence was fantasy- writing, and he denies that he told the security investigator that he was a bisexual. The discharge board, however, made an express adverse credibility finding in that regard, and found Schowengerdt to be a bisexual. In light of the investi- gating agent’s statement, and Schowengerdt’s correspon- dence, the Board’s credibility determination was supported by substantial evidence.” It cannot, therefore, properly be charac- terized as arbitrary or capricious. Finally, Schowengerdt's ninth amendment argument is meritless, because that amend- ment has not been interpreted as independently securing any Constitutional rights for purposes of making out a constitu- tional violation. See Standberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986). ll. Conclusion The search of Schowengerdt’s office, desk and credenza without a warrant did not violate the fourth amendment in light of the extreme security measures regularly taken in this workplace. The routine practice of searching employees, their work spaces, and their office furnishings precluded Schowengerdt from having a reasonable expectation of pri- Beller v. Middendorf, 632 F.2d at 807. Schowengerdt waived any equal protechoa challenge be may have bad to the Navy's policy, however, by failing, as be acknowledged at oral argument, to advance such a conien- Gon on this appeal. He has instead confined himself to arguing that be was incorrectly found wo be a bisexual. ms ~ \~ ScHowencexot v. Unrrep States 12467 vacy in his office, desk or credenza. Schowengerdt’s dis- charge from the Naval Reserve must also be affirmed Sonnaes he has raised no consututional challenge which is not fore- j Findings of Fact, and Conc APPENDIX B District Court Opinions, Orders } (901 SF VECOR / ROBERT C. BONNER a 1|| United States Attorney Fii [> FREDERICK M. BROSIO, JR. F 2\| Assistant United States Attorney pa ar Chief, Civil Division 3|| DONNA R. EIDE DEC 2 9 1988 Assistan! United States Attorney : ; 4 1 e United States Courthouse CLERK. U.S. O'STRICT COURT » ‘ov 3 iorth Spring Street CENTRAL DISTRIC. -« -...UFOR Y 5 Sbngeles, California 90012 bY ae , A e lephone: (213) 894-2448 we nS Clery us pie. a y$ for Federal Defendants — DEC 3 0 1988 FOR THE CENTRAL DISTRICT OF CALIF TEE. a No. CV 83-8007-AAH( Px) & : UNITED STATES DISTRICT COURT Qo 10 }| RICHA NEAL SCHOWENGERDT, ++ . Plaintiff, 12 V. 13] THE UNITED STATES OF AMERICA, DEPARTMENT OF THE NAVY, 14]| JOHN LEHMAN, SECRETARY OF THE NAVY; GENERAL DYNAMICS 18 || CORPORATION; C. W. KESSEL; K. D. TILLOTSON; CARL W. 16]| JENSEN, and RICHARD §S. DAY, — Kttonbe s~ 1 Date: NOvemperm=t , 1988 Time: 10:00 a.n. a ed 17 Defendants. 18 19 Defendants Day, Jensen and Tillotson's Motion for Summary 4 20 || Judgment came on regularly for hearing on Monday, Noveoriet=—?i |, _— 4h fii Che 21/1/1988, before the Honorable A. Andrew Hauk, United States District 22 || Judge, and the Court having considered the pleadings, the 23 || memorandum of points and authorities, exhibits, declarations and 24 || depositions and the oral argument at the time of the hearing, and 25 \}in accordance with the findings of fact and conclusions of law 26 li}entered herein, 27 I /// he” ti 020 ea ‘“ 28 TE geen Bas —_ oe Aaa 000003 & Al: t | DEC 3 u 199¢ -{ fac( 2)— Co ont aA TR OO keelmlUMMGlmUlUCN OU —- —|F&_ ee lee Sle ~ an wa > w Nw — © _ v=] IT IS THEREFORE ORDERED that judgment be and the same hereby is entered in favor of the defendants and against the plaintiff, and that this action is dismissed with prejudice as to defendants Day, Jensen and Tillotson. DATED: ALteintt 7X , 1988. b / - UNITED STATES DISTRICT JUDGE PRESENTED BY: ROSERT C. BONNER United States Attorney FREDERICK M. BROSIO, JR. Assistant United States Attorne Chief, Civil Division > ~« Lk btht Been: 4 + ~ DONNA R. EIDE Assistant United States Attorney Attorneys for Defendants Day, Jensen and Tillotson ee es P| wo woirvy a ”a a» Ww WCW el ao eu & WY NY S| OC wy —a 19 25 27 ROBERT C. BONNER | \ es United States Attorney 929K: FREDERICK M. BROSIO, JR. P Assistant United States Attorney -. : “Siam Chief, Civil Division LENK. US. 4h DONNA R. EIDE 13a - CENTRAL DISTRI- “a Assistant United States fee Reys osTnct.co' 7 BY 1100 United States C urfresse 312 North Spring Strdet' ' Los Angeles, California ‘9 DEL: | 21088 Telephone: (213) 894-2448 + rTREL DISTRICT OF CAL @ "> Attorneys for Federal Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA RICHARD NEAL SCHOWENGERDT, No. CV 83-8007-AAH(Px) Plaintifé, FINDINGS OF FACT AND Vv. CONCLUSIONS OF LAW IN RE MOTION FOR SUMMARY JUDGMENT THE UNITED STATES OF AMERICA, DEPARTMENT OF THE NAVY, JOHN LEHMAN, SECRETARY OF THE NAVY; GENERAL DYNAMICS CORPORATION; C. W. KESSEL; K. D. TILLOTSON; CARL W. JENSEN, and RICHARD S. DAY, FILED ON BEHALF OF DEPENDAMYS TILLOTSON, JENSEN AND DAy Defendants. ee 8 te te tee The defendants’ Motion for Summary Judgment came on for hearing on x - 1988 before the Honorable A. Andrew Hauk, United States District Judge. After having considered the pleadings, the moving and opposition papers and accompanying documents, exhibits, declarations, and depositions and the oral argument at the time of the hearing, the Court makes the following Findings of Fact and Conclusions of Law: — o0oclUC COUCOWlmUClCNMlClClCMCNOM eM FINDINGS FACTS Nature Of The Action i This action is brought against eight defendants an‘ includes four causes of action. The motion for Summary judgment was brougnt on behalf of defendants Tillotson, Jensen and Day (hereinafter the individual federal defendants) who are sued in their individual capacities under a constitutional tort theory of liability established in Bivens v. Six Unknown Named Agents of *he Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.€6.2¢6 6% oO ~ Ne] 71) in "Count II" of the fourth amended complaint. mThe action arises from the search of plaintiff's office desk an3 credenza on August 9, 1982 at the Naval Industrial Reserve Ordnance Plant at Pomona, California (the °*Facility”). r The plaintiff lleges that defendants Tillotson ani Jensen violated and conspired to violate his Fourth Amendment rights by searching his desk and credenza, and that defendanis Day, Tillotson and Jensen violated and conspired to violare his First Amendment rights by later disclosing to others the discoveries made during the search. Tne Parties i On August 9, 1982 plaintiff was a civilian engineer employed in a civilian capacity by the United States Navy ("Navy") at the Facility, and a chief warrant officer in the Naval Reserve. 4. At all times relevant to this case General Dynamics Corporation ("General Dynamics") was a private corporation contracted by the Navy to provide, inter alia, the maintenance 25 27 and security at the Facility. Defendant Charles Kessel ("Kessel") was employed by General Dynamics as an investigator in the Security Division. 3. At all times relevant to this case defendant Kenneth D. Tillotson ("Tillotson") was a Lieutenant Commander in the Navy stationed at the Facility. He was the Acting Commanding Officer at the Facility in August 1982. 6. At all times relevant to this case defendant Carl Jensen ("Jensen") was employed as 4 Special Agent for the Naval Investigative Services ("NIS"), assigned to the Office of the Special Agent-in-Charge at El Toro, California. His duties were to conduct criminal and counterintelligence investigations and operations for the Navy. 7. At all times relevant to this case Defendant Richard S. Day ("Day") was employed by the Navy in a civilian capacity as the Security Officer Stationed at the Navy Ship Weapons System Engineering Station ("NSWSES") at Port Hueneme, California. He was the head of the security office responsible for processing (but not granting) security clearances for civilian and military Navy personnel, including plaintiff's clearance. His duties were to request security clearance investigations, review the applications and requests for security clearance packages to ensure they were complete and accurate, and forward the packages to the Defense Investigative Services ("DIS"), the agency responsible for conducting security clearance background investigations. If the DIS investigation and determination was favorable, that office would notify Day's office, and his office would then issue a4 certificate of clearance. 25 27 Factual Background 8. The Facility is a United States Navy-owned installation where a variety of secret and top-secret military weapons systems are planned, designed and manufactured. The Facility is occupied jointly by General Dynamics Pomona Division and military and civilian employees of the Navy. It houses approximately 7000 employees, of which 15% are employed by the Navy and 85% by General Dynamics. The vast majority of the General Dynamics employees at the Facility work in the areas of weapons research, development, engineering and production, and approximately 95% of | these employees are tr quired to have United States government security clearances to work at the Facility. o. The Facility is an enormous complex occupying over 160 acres and dozens of buildings. Chain link fences topped with - barbed wire and interwoven with electronic sensing devices surround the Facility. In addition a steel cable is installed in| the fence several feet above ground so that vehicles cannot penetrate it. Concrete barriers fortify the lobby areas, while vehicle entrances are secured not only by guard stations but also with hydraulic barriers which block the passage of vehicles through the gate until inspection is complete. Closed circuit cameras located throughout the Facility are monitored by General Dynamics security officers twenty-four hours a day. 10. General Dynamics’ security duties include general maintenance and plant protection as well as monitoring the use and storage of classified government information, guarding the pedestrian and vehicle entrances and exits to the Facility anc certain buildings within the Facility, ensuring that classified ow ory a wv & VW N ~~ —— =—_ set Ol hell lrTrtl Trl lhl II An uw ks Ww Ne | CO 19 21 25 27 information is not removed from the Facility and preventing prohibited items from being brought into the Facility. The contract between NAVPRO and General Dynamics also requires General Dynamics to “investigate act(s) of alleged espionage or sabotage” and report the findings to NAVPRO. The Plaintiff 11. A military industrial engineer for over 27 years. plaintiff has had extensive and on-going exposure to the security regulations and procedures governing the defense industry. Plaintiff was also a member of the Naval Reserve from July, 1972 until June, 1984. Since his discharge from the Navy in 1954, plaintiff has held a variety of civilian positions with the Navy, the Rir Force and the private sector, all involving weapons systems engineering. 12. In addition, from 1966 through 1968 plaintiff had his own consulting firm which specialized in weapons systems engineering. He obtained a secret industrial clearance for his business and for himself which authorized him to maintain classified government documents at his home. Plaintiff converted a portion of his home into an office, which the Defense Industrial Security Clearance Office ("DISCO") inspected regularly to ensure compliance with government regulations regarding the maintenance and storage of classified documents. Plaintiff understood that under the terms of his clearance, any area in his home that he used for his business could be searched by DISCO representatives. 13. Plaintiff began working for the Navy's Naval Ship Weapons System Engineering Station ("NAVSEA") in July, 1972 and « § «= wo wor aA ue & YW WV = —_— &-=& F FF FF =F 0 an uA & Ww NY | OC _ ~ 25 27 was employed there continuously until early 1983. At the time of the incident which is the subject of this action plaintiff was assigned to the AEGIS program, which involves the design of a variety of shipboard weapons systems. Plaiftiff's job was to test and evaluate missiles developed for the AEGIS weapons systems. These weapons systems were first produced for military use in approximately 1975. When plaintiff worked on AEGIS, the United States was the only government with access to the systems he evaluated. 14. Plaintiff worked in Building 4 of the Facility where the Facility's largest number of classified documents, including top secret documents, are stored. Building 4 also has several “strong room and closed areas” where particularly sensitive military documents and hardware are housed. Special badges are required for access to these areas. Because of the large number of classified documents stored there and the special closed areas, Building 4 is one of the most heavily secured buildings at the Facility. 15. Plaintiff's defense-related jobs have required him to hold numerous security clearances. Except for two three-to-four-month periods, plaintiff had held a security clearance continuously since 1955. His clearance has generally been rated “secret,” although from time to time he has held special access clearances as well. During the time he was working on the AEGIS project at the Facility, plaintiff held a “secret” clearance, which ranks just below "top secret." 16. In connection with obtaining these security clearances plaintiff has been questioned about his sexual habits. He knew 7 25 27 that grant a security clearance. oper describes as a career counseling and resume writing service. He also used this business, however, to facilitate certain sexual activities. He corresponded with prospective sexual partners on Questant Enterprises letterhead, and he paid for sexually exp] checks. desi | syst investigated in some fashion, and searches occur daily and continually. To enter, every employee must display a picture badge, which must be worn and visible at all times on the upper left-hand side of the picture, the badge verifies that the employee has a propet security clearance. If the employee is authorized to bring a car into the Facility, as plaintiff was, 8 special symbol must appear on the badge. Facility through the vehicle entrance, the employee is required to show the picture badge and the employee's car may be searched by the guards. The vehicle gate guards are authorized to search an applicant's sexual habits could influence the decision to 17. In addition to his Navy engineering job, plaintiff ated a business called “Questant Enterprises,” which he icit photographs and other services with Questant Enterprises Security Procedures At The Facility 18. Because the business conducted at the Facility is the gn, testing and production of secret military weapons ems, virtually every person who works there has been 19. Uniformed guards protect each entrance to the Facility. employee's body. In addition to the employee's name and 20. Every time an employee drives a vehicle in or out of ‘the « g - the entire car, including the glove compartment, trunk and closed containers inside the car or trunk. Plaintiff was not aware of 2 3 || any limits to the guards’ authority to search. The Guard Force 4 Policies and Procedures Manual requires guards to search every gj} car leaving the compound after normal working hours. Plaintiff's 6) car had been searched several times. The guarded vehicle 7|| entrance which plaintiff normally used bore 4 prominent sign 8 stating the following: 9 ALL VEHICLES SUBJECT TO SEARCH. | 10 YOU MAY OPEN TRUNK YOURSELF OR | 1 GUARD WILL DO IT FOR YOU. | 12 21. Plaintiff testified that all employees -—~ including | 13 himself -- must open all packages for inspection every time they | 14) enter or leave the building at the pedestrian entrances, | 15 | including lobbies, in which he worked. The sign posted at the | guard station in the lobby of Building 4 reads: | 17 |) IDENTIFICATION BADGE MUST BE WORN ON | ial THE LEFT SIDE ABOVE WAIST ON YOUR OUTER * GARMENT. ALL PACKAGES, BOXES, BRIEFCASES, | 20| PURSES AND SACKS MUST BE OPENED FOR GUARDS’ | 21 INSPECTION UPON ENTRY AND EXIT. | 22 22. Employees and their belongings may be searched 23 || regardless of whether they consent to the search and even if they || claim to have no classified information with them. Plaintiff 95|| knew the guards conduct searches both on 4 random basis and when 26 || “someone was tipped off about something." 27 23. In addition to the stationary guards who search 28 || employees and their vehicles at the gates and lobbies 4s they - 8 - - Je y || enter and exit the Facility. General Dynamics guards also patrol inside the Facility. These guards search the interior of Plaintiff's building daily to ensure that all classified information is properly secured and that no other security 2 3 a 5 regulation is breached. Plaintiff had frequently observed the 6 guards searching his building. Although they might initiate a 7|| search at any time, the guards often searched after regular g || business hours when most of the employees were gone. 9 24. Security regulations mandate that all unattended 10 || classified documents be locked in a safe or other authorized jj | container. Because of this regulation, many NAVSEA employees, 12 || inclu¢cing plaintiff, had safes in their offices in which ; 13] classified documents are locked when not in use. Plaintiff knew 14 that it violated security regulations to leave any classified Gocument unattended on a desk or credenza, inside an unlocked | 16 | desk or even inside a locked desk. | 25. There are also central repository safes located in 18 | guarded vaults which hold other classified documents. An vo | attendant monitors these vaults. In addition, certain “closed 20 || area” vaults are accessible only to persons with “special badge 21 || access." 22 26. To monitor and enforce these strict security 23|| regulations, the guards regularly search individual offices, 24|| including the interiors of desks and other office furniture. The 25|| "Guard Force Policies and Procedures Manual" explicitly directs 26 || guards carefully to inspect unlocked desk drawers for classified 27|| material which is not properly secured, and guards have access to 28|| keys when necessary. 26 27 27. Whenever a guard discovers an improperly stored classified document, the guard confiscates and secures the document and leaves in its place a written security citation for the person who failed to store the material properly. The offending employee must go to @ security officer to retrieve the document and to explain the breach of security regulations. After several citations an employee may be terminated. 28. To supplement the plant-wide security services performed by General Dynamics, Navy employees follow a system of double-checking one another to ensure that all security regulations are observed. One employee in each work group is assigned on 4a rotating basis the responsibility of verifying that the offices and safes of co-workers are properly secured. An office form kept on the top of each safe attesting that all ‘documents are properly stored must be signed and dated by the employee responsible for the safe at the end of the day. After the employee signs the form, the rotating security checker for each work group inspects the safe and co-signs the form. 29. Plaintiff was 4 participant in this self-monitoring system, and had the duty to "look around and see if there were any classified documents lying around.” When it was his turn to check other employees’ offices he pulled on desk drawers to see if they were locked and, if not, "might be inclined to look inside and see if there were any documents lying loose, classified documents.” 30. In addition to the General Dynamics security force and the work group security checkers, the Navy has its own Security Office at the Facility whose civilian employees make random — a « > Ge | | ooclUCf OmUC HOC TUTlCcCOrOrmUlC CO UlUhchhmUlUCUMh hLlhUCUChCrlUh el YI A vA B&B WwW WN = inspections of employees’ safes and generally assure compliance with security procedures. Plaintiff was aware that General Dynamics investigators such as Kessel conduct special, more detailed security investigations from time to time. 31. Plaintiff knew that the Department of Defense conducts official security inspections of the Facility every six months. In plaintiff's own words this inspection "goes the entire gamut, of inspecting classified documents for proper markings, storage procedures for classified documents, [document] transmittal from the Facility, handling of classified material." In addition, General Dynamics performs a self-inspection between Department of Defense inspections. Finally, each individual must inventory his or her own classified document safe every six months. 32. Plaintiff attended many security briefings while he worked at the Facility. Upon receiving a security clearance, each employee receives a security briefing during which the employee is instructed about the proper manner of safeguarding, transmitting and storing classified material and the necessity of wearing badges at all times. At his initial security briefing, | plaintiff was instructed about the various kinds of searches that occurred at the Facility and about his duty tc submit to them. 33. In addition to this initial briefing, plaintiff attended many other security briefings or tutorial sessions during the course of his employment at the Facility. These tutorial sessions are mandatory and, if an employee missed one he had to make it up. 34. The tutorial sessions consist of “C(rJefresher courses” on how to protect classified information and include speakers and | - ll - + [}- ron oe: es | a | ed ee eee” ee ee,” ee 19 25 27 films concerning proper security of classified information and the threat of espionage. A vital subject repeatedly addressed in these security sessions is the danger of inducements to divulge classified information, thereby compromising national security. one of the inducements about which plaintiff was specifically warned was pressure to divulge classified information as a result of a romantic or sexual entanglement. Plaintiff characterized the inducement as follows: "Oh, there would sometimes be the blonde that led the man astray. « .: gaining information from him. . . . There was usually romance involved of some sort.” 35. Plaintiff also received numerous written instructions regarding security procedures at the Facility. For example, the “Industrial Security Manual for Safeguarding Classified Information” is issued to contractors such as General Dynamics by DISCO and is available to all employees at the Facility for their review. Plaintiff was already familiar with the contents of this manual when he came to work at the Facility, because he had received the manual in 1966 when he obtained his security clearance as an independent government contractor. While he was an independent contractor, plaintiff was personally responsible for safeguarding classified documents in accordance with the provisions of the manual. 36. Plaintiff was aware he was also subject to the provisions of a Navy security manual while he worked at the Facility. In addition, & specific set of written security instructions was distributed to the Navy employees at the Facility. Plaintiff had received a copy of these instructions and kept them in his office credenza -- the same credenza .« 22 «@ 1 searched by Kessel and Jensen. These instructions set forth the 2 procedures to be followed with regard to searches at the gates 3 and inside the building. 4 37. In addition to security briefings and written 5 instructions, the Navy held lectures approximately every six 6 months to review the conduct appropriate for government military 7 intelligence emplcyees. To complement these lectures, written 8 “standards of conduct” were regularly disseminated to plaintiff 9 and his Navy co-workers. Navy employees were required to read 10 these instructions regularly and that plaintiff had done so. 11 || Plaintiff understood that “associations of a dubious nature” were 12 among the types of conduct forbidden to Navy employees. a 38. Plaintiff was required to disclose “any outside interest 14! or any business, any outside employment, anything of that sort.” el Pursuant to this regulation, plaintiff filed several disclosure ve forms relating to Questant Enterprises. He disclosed his sal Questant Enterprises resume writing and career counseling 1 | activities, however; but never revealed the use of Questant at Enterprises letterhead to procure sexual activities with 0 | "swinger" correspondents. 91 | 39. All of the NAVSEA technical employees, including 22|| plaintiff, had individual offices in Building 4 at the Facility. 93|| Their office doors could be locked. However, General Dynamics 2%4|| security and custodial employees as well as certain on-site Navy 25|| engineering officers kept duplicate keys permitting them to enter || plaintiff's office at any time. 27 40. Plaintiff kept his current, unclassified project files og|| in his desk drawer. He commingled the personnel files with his - [§- ee | project files despite the fact that he knew “[s]Jomeone, my boss, l g|| might want to go into my desk to look for a [project file) L 3 document.” He also stored @ variety of non-business, personal | 4|| items in his @esk, such as personal letter, semi-precious gems 5 which he collected, rolodex cards and a checkbook. Although 6} plaintiff had a key to his desk, and it was his practice to lock 7 || the desk when he left the Facility in the evening, he knew there gi was a duplicate key which ‘was available in the event you 9 | happened not to be there and some papers or things needed to be 10 | retrieved .. . or taken from your desk.’ ; TT 41 Behinag his desk was plaintiff's credenza, which could 12} also be locked and for which plaintiff believes there was also a 13 | duplicate key Plaintiff stored a variety of professional al materials, bulky project files and miscellaneous personal items 1g || in the crecenza He also kept the correspondence, photographs 16 | and name cards related to his sexual encounters in the lower left 17|| hand drawer of the credenza 18 | 42 Plaintiff kept his sexual materials in the bottom 19|| left-hand drawer of the credenza in a large manila envelope. On 20 | the outside of the envelope he had written a signed instruction 9) || to whomever might finc the envelope in the event of his death 92|| "{Pllease destroy this material as I do not want my grieving 93|| widow to read it.” 24 43. It was apparent to 4 reasonable person that from this 95|| instruction, plaintiff did not want his family to know about the 26 || sexual materials. Nor did he want his supervisor to find out 27|| about their existence. Plaintiff believed his supervisor would 28 os M4 «= a ——- 1) | 25 27 aU erltC SCM oo wewCU! have instructed him to remove the sexual materials from the Facility had the supervisor known of their existence and content. 44. Plaintiff did, however, disclose both the nature and location of the sexual materials to & co-worker, Robert Bordeaux. In early 1982, several months before the anonymous call to Kessel, plaintiff described the materials to Bordeaux in some detail and told Bordeaux where they were stored in the credenza. 45. The materials plaintiff kept in the manila envelope consisted of correspondence between plaintiff and women and men with whom he sought sexual relationships. Plaintiff sent and received sexually explicit letters arranging for sexual ‘encounters in groups of two or more. The letters indicated he also belonged to a sex club which purported to have as members women desirous of arranging sexual and romantic relationships. He regularly sent money (called "Love Offerings”) to the club's headquarters to finance its operations. The manila envelope also contained magazine advertisements by persons seeking sexual encounters of various kinds. Plaintiff kept copies of his responses (letters and nude photographs) to these advertisements and of his follow-up letters after an encounter occurred. a6. When plaintiff responded to an advertisement by someone seeking a sex partner, he regularly gave out his work telephone number as a way of contacting him. He did this despite the fact that he knew there was & government policy against using government telephones for personal business. Plaintiff admitted that prospective sexual partners did, in fact, call him at work and that such calls had to be routed through the main ————— ' [Fs } | } |) switchboard. Because the switchboard operator clearly identifies 2|| the Facility as “General Dynamics" when answering calls, every 3); caller would necessarily discovery that plaintiff worked in the 4|| defense industry. - | s 47. Plaintiff directly revealed his full name, profession | 6|| and his connection to the defense industry to his various sexual | | partners in other ways as well. In Marious letters, for example, | g|| plaintiff described himself as: “a missile engineer"; "a missile | g|| engineer for the Navy as well as an active reservist"; "an 10 | electronics engineer (Missile Systems)"; “an engineer for the 1) || government"; “on military duty in the NAVAIR headquarters for two 2 weeks"; "sometimes uvol[ing] to Naval Weapons Station, China Lake’; ie 13|) "in the military as a Naval Reserve Chief Petting [sic] Officer 14 (E7)'! I work for the Navy as a Civilian, GS-13, Test and 15 | Evaluation Engineer. Finally, in one letter he tells the * recipient "I'm trying to get my computerized missile failure data 17| bank up-to-date so we can start making various plots to present 18 | to management. 19 48. Plaintiff admitted at his deposition that references in 20 | the correspondence to the fact that he was a missile engineer 21| connected with the military "might .. . be harmful.” He had 22 | considered the possibility that some of the persons with whom he 23 | solicited sexual encounters might attempt to blackmail him. 24 | Although plaintiff was keenly aware of the dangers of disclosing | 2s| his defense industry status in the course of secret sexual 26 | liaisons, he did not conceal this information. | 27 49. Plaintiff decided to keep his "swinger" correspondence | 28 | and pictures at his office because he was afraid someone in his - 16. | }|| family might discovery them if they were stored at his home and || because he wanted ready access to them during the day. He wrote ~ 3|| letters, sent and received mail and nude photographs with respect 4|| to his sexual correspondents while he was at work. 5 50. Plaintiff stored the sexual materials in the credenza : 6|| rather than the desk because he thought a colleague looking for a 9|| project document in his absence would be more likely to look in g|| his desk than in his credenza. 9 | The Anonymous Tip Of August 9, 1982 Received By Kessel 10 51. In the late afternoon of August 9, 1982, Kessel received 11 | a telephone call in his office from an anonymous male caller who 12 || stated that if Kessel would go to a particular office in Building ° 13 | 4 of the Facility and look in the lower left-hand drawer of the 14 | credenza in that office he “would find material that would be of 1s | interest to the security department." Accordingly, after the 16 | telephone call, Kessel visited the office which the caller had 17|| described and found the manila envelope. val Involvement Of Kenneth D. Tillotson In The Case 19 52. In August 1982, Tillotson was the Acting Commanding 20 Officer for the Navy at the Facility. On the morning of August 21 10, 1982, Tillotson received a call from Kessel who advised him 22|| that Kessel had some information in his office that he wanted to 23|| discuss with Tillotson. Tillotson went to Kessel's office and 24|| inspected the material discovered by Kessel. 25 53. Tillotson examined the material noting (i) its sexually 26|| explicit nature, (ii) that plaintiff had indicated in some of the 27|| letters that he was a Navy employee, a missile engineer, and a 28|| Navy warrant officer, and (iii) that plaintiff had included his = 9. ee | | Navy business card in some of the correspondence. Tillotson-also j 2|| noted that on the envelope in which the material had been 3|| discovered, plaintiff had written a statement to the effect that 4|| in the event of his death, the material should be destroyed so g]| that it would not cause his family more grief. | 6 | 54. Based on his observations, Tillotson was seriously 7|| concerned that plaintiff could be a target of blackmail, | g|| especially in light of the notation on the envelope indicating | 9| plaintiff's fear and concern that his family not find out about | 10|| his sexual escapades. Because of these concerns, Tillotson | 11 | immediately called the NIS at El Toro for investigative 12 | assistance. NIS Agent Jensen was sent to the Facility in 13 | response to that call on that same day. 14) 55. After Jensen had reviewed the material, he indicated his 15 | intent to conduct a further search of plaintiff's office. 16 | Tillotson, as Acting Commanding Officer, gave Jensen his 17 : authorization and accompanied Jensen and Kessel to plaintiff's 18 | unlocked office. Tillotson did not assist in the search of 19] plaintiff's office but merely remained in the area. 20 | 56. After Jensen had completed the search, he left the 21 Facility and Tillotson had no further contact with him. At 2 22 later date, the NIS report of investigation prepared by Jensen 231 was sent to Tillotson's office. Both Tillotson and Captain Wendt 24 ("Wendt"), the Commanding Officer, read the report and Tillotson 25|| placed it in the office safe. Tillotson did not provide anyone 27 contact with anyone at the United States Postal Service (“Post«- 28|| service"), the Naval Military Reserve or NSWSES regarding the | 26| (other than Wendt) the copy of the report. Tillotson had no | | - 48 °- a 40-. discovery of the material, and he did not advise anyone that plaintiff was involved in sodomy and homosexual activities. Involvement Of Carl Jensen In The Case 57. Jensen became involved in this case for the first time office at El Toro when his supervisor, Special Agent in Charge Charles Van Page ("Page") advised him that Page had received a 2 3 4 g |) oF August 10, 1982. On that day, he was working at the NIS 6 7 g call from someone at the Facility. Page directed Jensen to go to 9 the Facility and meet with Kessel, a security investigator 10 employed by General Dynamics. 11 | 58. In accordance with those instructions, Jensen went to 2] the Facility on that same day and met with Kessel and another 13 || investigator employed by General Dynamics. At the meeting, 14|, Kessel informed Jensen of the circumstances surrounding the discovery of tre material and showed Jensen the material he had 15| | found in the plaintiff's office. 17 | 59. Jensen examined the material and concluded that | plaintiff was involved in heterosexual and bisexual activities involving multiple sexual partners with whom he had solicited: , — oO 20 sexual encounters through want ads in "swingers™ magazines. 21 60. Jensen noted the following facts which he considered 22|| significant: Plaintiff had included his office telephone number 93|| and his Navy engineer business card, and nude, sexually 24 suggestive photographs of himself as well as photographs of 95 || himself in full Navy uniform in some of the correspondence. one 26 || letter received by plaintiff from an Italian stewardess who was 27|| seeking sexual relationships primarily with servicemen. Many of 28 - 19 - ; “ye wo worvyan ss WY WN = a YI A un s&s: WwW NY =| OO 19 25 27 the letters made reference to the fact that Schowengerdt worked for the Navy as a missile engineer. 61. The letters from plaintiff were written on stationary bearing the letterhead "Questant Enterprises,” which appeared to be a business with which plaintiff was closely associated and through which he conducted the sexual liaisons. Jensen was aware that plaintiff was working in a Navy weapons missile project and required and held a secret clearance to perform his work. 62. Based on his examination of the materials and his knowledge of plaintiff's work activities, Jensen concluded that plaintiff fit the profile of someone who would be susceptiple to | blackmail or contact by hostile intelligence agents and, | therefore, was a potential security risk to the United States. In addition, Jensen was aware that Navy regulations prohibited homosexual and bisexual activity by military personnel, and he knew that plaintiff was in the Navai Military Reserve. Jensen therefore decided to conduct a further investigation to resolve his suspicions regarding possible blackmail and to determine whether solicitation of sex and the mailing of sexually explicit materials through the United States mails was a violation of the United States postal laws. 63. Jensen decided a further search of plaintiff's office was necessary and was concerned that if plaintiff became aware of | the investigation, he might attempt to destroy evidence. Jensen therefore decided to search plaintiff's office immediately. However, before doing so, he contacted Page, his supervisor, to advise him of what he had found, what he intended to do, and to confirm what he understood from his training -- that a government - 90 - -2).- 25 27 employer had no legitimate expectation of privacy in a government work space and that a warrant was not required. Page agreed that no warrant was necessary. 64. On that same day, Jensen, accompanied by defendants Tillotson and Kessel and another General Dynamics investigator went to plaintiff's office. Only Jensen conducted the search. The door to plaintiff's-office was unlocked, as were the desk and credenza within his office. Jensen searched plaintiff's office looking for evidence of contact by a foreign or hostile agent, evidence that plaintiff had been blackmailed, and further evidence of violations of the postal laws or Navy regulations regarding homosexual or bisexual conduct. 65. During the course of his search, Jensen found more material similar to that giscovered by Kessel. He discovered and seized (i) a Japanese/English dictionary with notes and phrases he believed could be evidence of a contact by a foreign agent; (ii) a checkbook from Questant Enterprises which he believed related to plaintiff's sexual encounters and in which foreign foreign agents might be identified; (iii) gemstones found in a Questant Enterprises envelope which he believed could have been used by plaintiff to “pay off" potential blackmailers; and (iv) several photographs of different women whose identity was unknown to Jensen at the time. Jensen seized the photographs because he suspected the women might be related to plaintiff's Questant Enterprises activities, which at the time seemed very unusual and an easy target for blackmail. In short, the items seized related to Jensen's concerns that plaintiff might have become a security risk through blackmail. — ri nau ks» Ww W Oo oo 25 27 66. After completing the search of plaintiff's office, Jensen took the material he had seized and the material Kessel had seized, and returned to his El Toro office. He immediately contacted another agent in his office who specialized in foreign counterintelligence investigations and sought his assistance in reviewing the seized material. 67. On August 17, 1982, Jensen called a United States postal inspector to determine if plaintiff had committed any criminal violations of the postal laws. Jensen described the nature of the material he had discovered but did not identify the plaintiff by name. He was advised by the postal inspector that unless the material established evidence of sexual conduct involving minors, the Postal Service would not pursue the case (even though it might technically violate the laws). That conversation was the only contact Jensen had with the Postal Service concerning plaintiff's activities. 68. Continuing his investigation, Jensen interviewed plaintiff and obtained his consent to search plaintiff's residence. Jensen's investigation uncovered no additional evidence. Jensen ultimately concluded that there was no evidence establishing that plaintiff had been contactec by a hostile agent or was the target of blackmail. On September 16, 1982, Jensen completed his final report of investigation, which was transmitted to various federal agency offices, including NIS, headquarters and region and the FBI, and to plaintiff's Commanding Officer in the Reserve (since the evidence of homosexual or bisexual conduct could bear on his status as a reservist). 1 69. With the completion of his final report, Jensen was no longer involved in the case. He was not contacted by anyone from DIS concerning plaintiff's subsequent security clearance investigations, and he did not send DIS a copy of his report. Involvement Of Richard Day In This Case the August 1982 searches. In late October or early November 1982, Day was informed by & personnel staffing specialist at 2 3 4 5 6 70. Day first became involved in this matter subsequent to : 8 9 NSWSES, Port Hueneme, of the discovery of the sexually explicit material in plaintiff's office at the Facility. This was also the first time Day was specifically aware that plaintiff was a Navy employee. It was Day Ss understanding that the personnel — ww 13|| specialist advised him of the discovery of the material in 14|| plaintiff's office because it might have some impact on 1$ plaintiff's security clearance and might require that Day's 16) office request an investigation regarding that clearance. 7 71. Shortly after learning of the incident, Day was informed ° 18 | that his superior had received a copy of the NIS report relating 19 to the incident. Day was given a copy of the report and 20 | instructed to request & limited investigation by DIS to determine 21 | whether, in light of the discovery, plaintiff should retain his 22| secret clearance. In compliance with those instructions, Mr. Day 23|| submitted a request to DIS for a limited investigation of 24|| plaintiff to determine what action plaintiff might take were he 25|| subjected to coercion, pressure or blackmail because of his 2%|| sexual activities. Day did not send DIS, or anyone else, 8 copy 27\| of the NIS report concerning plaintiff. 28 - 23 - wo worauwsk vw VN = a ee ee ne a wtb wwbv = © — — 19 72. Day heard no more about the matter until he was advised | by the personne] specialist that plaintiff had resigned from his | Navy engineering job on January 21, 1983. Thereafter, DIS was | advised, either by Day or his superior, that plaintiff had | resigned, and no further investigation was needed. 73. Sometime in March 1983, @ letter addressed to the "Security Officer’ for the NAV SEA TECH REP was received in Day s&s office advising that DIS was attempting to convert plaintiff's security clearance into an industrial (private sector) clearance. The letter asked whether there had been any adverse information developmented subsequent to the granting of plaintiff's secret clearance in 1972. As the Security Officer, Day was obligated to respond to the inquiry, which he did by checking the "yes box and identifying NIS San Diego as the location where the file with the adverse information could be located. | 74. Day was not contacted again by DIS regarding plaintiff. He has no personal knowledge of either the duration of the DIS investigation of plaintiff before completion or what factors may have caused the delay about which plaintiff now complains. Course Of Events Concerning The Security | | Clearance Investigation Of Plaintiff Following | The August 1982 Incident 75. DISCO is the Department of Defense agency responsible for conducting personnel security clearance investigations under that the agency was first contacted regarding plaintiff on March | the Defense Industrial Security Program. DISCO records indicate | | 1, 1983. On that date, the Transfer/Conversion Board received 4 | - 24 - (, 25 27 personnel security questionnaire from Northrop Corporation in ws ae Hawthorne, requesting that plaintiff's Civil Service Commission st & (government) clearance be converted to an industrial (private 76 ursuant to that request. & DISCO personnel security specialist initiated an investigation by research of the Defense Central Index of Investigations ("DCII") to determine whether any | recent investigations had been initiated concerning the subject | that warranted review before the clearance was converted. A | query of the DCII revealed that plaintiff had been the subject of | an NIS investigation in 1982 During this time, DISCO also sent | the inquiry regarding adverse information to Day's office. On April 14, 1983, the specialist requested a Copy of that file for review It was not until five Gays later, April 19, 1983, that DISCO officials received the response from Day indicating the existence of adverse information. 77. Based on the procedures in place at pIsco, if the DISCO investigators were aware of the existence of the NIS report | either from the DCII query or from the reference to the report in Day § memorandum, DISCO would have reviewed the NIS report and initiated an expanded investigation of plaintiff to uncover all relevant information. Thus, irrespective of Day's reply to the DISCO inquiry, DISCO would have been aware of the NIS report and proceeded as it did. 78. Day did not provide other information to DISCO or DIS other than the disclosure to DISCO of the existence of the NIS report (a fact of which it was already aware). Day was obligated under the Department of Defense Personnel Security Program, Bi th -41- || Paragraph 4-102, to inform authorized agencies whenever adverse 2|| information is known to him concerning an individual who is being 3 processed for a security clearance. The pertinent paragraph 4|| subsection provides: 5 .. Whenever a Civilian or military member | 6 | transfers from one DoD activity to another, | 1} the losing organization's security office is | 8 | responsible for advising the gaining | 9 | organization of any pending action to suspend, 10 | deny or revoke the individual's security | | 1) clearance as well as any adverse information 12 | that may exist in security, personnel or other 13) files In such instances the clearance shall 14) not be reissued until the questionable + | information has been adjudicated. 16 | 79. The delays in granting plaintiff's clearance were caused 17}, by the routine procedures involved in an evaluation of 18 | potentially adverse information. In plaintiff's case, DISCOS 19| clearance process began on March 1, 1983, the date the 20 | application for conversation of clearance was received from 91|| Northrop Corporation. It concluded on April 2, 1984, when the 22| industrial secret clearance was granted. The intervening time 23|| included the administrative aspects of the conversion of | 24|| clearance process (March 1, 1983 - April 25, 1983); completion of | 25|| the DD Form 48, Personnel Security Questionnaire, which was 2% || essential to the conduct of the current investigation (April 25, nl 1983 - May 27, 1983); completion of that investigation (June 3, 28 || 1983 - January 9, 1984); evaluation of the results (October 14, - 26 - Ag: ii ts } || 1983 - January 9, 1984); referral of the completed investigation to the Director of the Industrial Security Clearance Review for adjudication and final clearance determination (January 9, 1984 - March 14, 1984); and referral of the clearance determination to D1IscO for implementation (March 14, 1984 - April 2, 1984). A of the DISCO investigative report is attached as Exhibit A. 80. Mr. Day's conduct did not cause any delay in the DISCO | investigation of plaintiff or in issuing his security clearance. 2 3 4 5 64 13-month processing time in cases such as this is usual. A copy - 8 9 0 ;, ; , 81. Any conclusion of law deemed to be a finding of fact is incorporated here 12 II 13 | CONCLUSIONS OF LAW 14) Standards For Summary Judgment 5) l This Court has jurisdiction over this action pursuant to ot 28 U.S.C. § 1331 and jurisdiction over plaintiff and individual 17| defendants " 2. ummary judgment is proper if there is no genuine issue 19) as to any material fact and the moving party is entitled to 20 || judgment as a matter of law. See Anderson v. Liberty Lobby, (1986) ("Liberty Lobby"); Fed.R.Civ.P. 56(c). The mere existence . Inc., 477 U.S. 242, 247, 106 &.Ct. 2505, 2510, 91 L.Ed.2d 202 | | 23 || of some alleged factual dispute between the parties will not 24|| defeat an otherwise properly supported motion for summary 25 || judgment; the requirement is that there be no genuine issue of 26|| material fact." Liberty Lobby, 477 U.S. at 247-48, 106 S.Ct. at 27 | 2510 (emphasis in original). -Aq- —-— =—-=e = —=— —= == = I aA uw & WwW NY | OO 25 27 3. The threshold question in evaluating a summary judgment motion is whether there is a need for & tria] because there exists a genuine factua! issue which is capable to being resolved g in favor of either party that requires resolution by a fact finder. Liberty lobby, 477 U.S. at 250, 106 S.Ct. at 2511. The determination of whether a given factual dispute requires submission to a jury is governed by the substantive evidentiary standard of proof that would apply at trial in case. Id. at 2514. 4. If the non-moving party will bear the burden of proof at trial on an element essential to its case, and that party fails to make a showing sufficient to establish the existence of that element, then summary judgment is appropriate. Celotex Corp. Vv. Catrett, 477 U.S. 317, 322-23, 106 §.Ct. 2548, 2552-53, 91 L.Ed.2¢ 265 (1986) ("Celotex"). The summary judgment movant may thus meet its burden of showing the absence of an issue of material fact by pointing out that the plaintiff's proof is lacking concerning an element essential to its case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. $. Where a defendant moves for summary judgment based on the lack of proof of a material fact, the plaintiff must demonstrate that there is sufficient evidence on which the jury could reasonably find for it; “(t]he mere existence of a scintilla of evidence in support of the plaintiff's position will | be insufficient.” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. 6. “The evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in favor of the - 28 - - 50 - wo won nA HR & WO WD = ~ ~ ~ ~ _ — raw ~ ~ nn LA > w& N — S&S 25 27 nonmovant.” Liberty Lobby, 477 U.S. at 255, 106 §.Ct. at 2513 (citation omitted). Lx And while the evidence of the non-movant plaintiff must be believed and all reasonable inferences drawn in its favor, “Ci}£ the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-250, 106 S.Ct. at 2511. Id. (Citations omitted). 8. The court finds there are no genuine issues of material fact in this case precluding summary judgment. Fourth Amendment Allegations 2. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures". U.S. CONST. amend. Iv. The applicability of the Fourth Amendment turns on whether "the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 §.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); see also New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 741, 83 L.Ed.2¢ 720 (1985) ("[t]he Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise ‘illegitimate'") 10. Although there may be legitimate privacy expectations in the workplace, such expectations are "far less than those found at home or in some other contexts.” O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 1502, 94 L.Ed.2d 714 (1987). See also New York v. Burger, U.S. , 107 §.Ct. 2636, 2642, 96 L.Ed.2d 601 (1987) ("An expectation of privacy in commercial premises - 29 - 4 oorna vu & WY WN = Pe ed 25 ae is different from, and indeed less than, a similar expectation in an individual's home."). 11. ,|| in a number of these pieces of correspondence and the author's 5 || wife did not know about these sexual contacts. 17. In accordance with General Dynamics' contractual obligation to report to the Navy information suggesting the 3 | possibility of a compromise of security, Kessel took the envelope | and its contents to Kessel's office to confirm whether he was ve) 10 | required to report the contents of the manila envelope to the Navy. 18. On the following day, August 10, 1982, Kessel gave rN || the material to the Navy Commander of the Facility, Lieutenant Cw | Commander K. A. Tillotson, and, at Tillotson's directicn, Kessel 14| and Clarence Johnson, a General Dynamics security investigator, | escorted Tillotson and Navy Investigator Carl W. Jensen to 16|| Plaintiff's office where Jensen and Tillotson conducted a further search of Plaintiff's files. Neither Kessel, Johnson nor any 18|| other General Dynamics' employee participated in this search. 19 | 19. After transferring the material to Plaintiff's Navy o9|| superiors and escorting the Navy officials to Plaintiff's office on August 10, 1982, neither Kessel nor any other General Dynamics o9\|| employee had any other further connection with any investigation 52/1 of Plaintiff. - 24] // | c SF me | j / 26 | “or | ery / R | / Gibser Gunn & Cryicner -6- _47- } = Y Geese Oem 4 Cruces 20. All Findings of Fact set forth under the heading "Conclusions of Law" and in the Motions for Summary Judgment of the Public Defendants at pp 4:20 to 17:6 and the Private /// Defendants at pp 5:23 to pp 17:9, and in the Private Defendants' Reply to Plaintiff's Ojbections, etc. at pp. 20-21 are incorporated herein by reference. 4 to CONCLUSIONS OF LAW i. All Conclusions of Law set forth under the heading "Findings of Fact" are incorporated herein by reference. 2. Summary judgment shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any ™2fo~ a” €-- +> - «4=- ha o~-- (wb 28 Gibeen Quan & Cruicner 7; The actual office practices, procedures and legitimate regulations in place at the Facility precluded Plaintiff from having a reasonable expectation of privacy in the contents of his credenza. 8. The pleadings, papers, deposition excerpts and declarations on file herein establish that there is no genuine issue of material fact that the operational realities of Plaintiff's workplace precluded him from heving a reasonable ° expectation of privacy in the contents cf his office credenza as a matter of law, and the Private Defendants are entitled to judgment in their favor against Plaintiff with respect to his Second Cause of Action as a matter of law. 9. Even if a government employee has a legitimate privacy expectation in the workplace, a warrantless search of the public employee's workplace is permissible under the Fourth Amendment so long as the search is reasonable within the context in which it takes place. O'Connor, 107 S. Ct. at 1499. 10. Neither a warrant nor probable cause is necessary for conducting a search of the workplace of a public employee so long as the search concerns work-related, noninvestigatory intrusions or investigations of work-related misconduct. Id. at 1502. 11. A search of the workplace of a public employee is justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that an employee is guilty of work-related misconduct or that the search is necessary for a noninvestigatory work-related purpose, and such a search is permissible in its scope when the measures adopted are -9- (D Gibsan Ounn & Cruicner || reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the alleged miscenduct. Id. at 1503. : 12. The pleadings, papers, deposition excerpts and declarations on file herein establish that there is no genuine issue of material fact that the inception and scope of Kessel's search were reasonable within the context in which the search occurred, and the Private Defendants are entitled to judgment in their favor against Plaintiff with respect to Plaintiff's Second Cause of Action as a matter of law. 13. A warrantless search in a heavily-regulated industry is reasonable if (1) the regulatory scheme pursuant to which the search 1s conducted carries out a substantial government interest, (2) the warrantless inspection is necessary to carry out the regulatory scheme, and (3) the inspection program provides a constitutionally adequate substitute for a warrant. New York v. Burger, U.S. , 107 S. Ct. 2636, 2644, 96 L.Ed.2d 601 (1987) 14. Regulations in a heavily-regulated industry can provide an employee notice that the employee's property may be subject to periodic inspection undertaken for specific purposes and can therefore provide a constitutionally adequate substitute for a warrant. Id. 15. The pleadings, papers, deposition excerpts and declarations on file herein establish that there is no genuine issue of-material fact that the Facility is part of a heavily-regulated industry and that Kessel's inspection of Plaintiff's credenza was a reasonable warrantless inspection in such an industry, and the Private Defendants are entitled to -10- , F/- Judgment in their favor against Plaintiff with respect to te 2 Plaintiff's Second Cause of Action as a matter of law. 3 16. In determining whether a disclosure of information +|| Dy government agents is constitutional, it is appropriate to weigh 5 any intrusion into an individual's zone of privacy against the 5 public interest in and reason for the disclosure. 7 17. The pleadings, papers, deposition excerpts and - declarations on file herein establish that there is no genuine 9 issue of material fact that Kessel's disclosure of the information 5 | concerning Plaintiff did not violate Plaintiff's constitutional rights, and the Private Defendants are entitled to Judgment in their favor against Plaintiff with respect to Plaintiff's Second Cause of Action as a matter of law. 18. The defense of qualified immunity may be properly | | | | 15 | established on a motion for summary judgment when, by | | 16|| declarations, depositions and admissions, a set of undisputed 17 facts is revealed upon which the moving party is entitled to 18 judgment as a matter of law. Standridge v. City of Seaside, 545 19 | F. Supp. 1195, 1198 n.1 (N.D.Cal. 1982). 20 | 19. Officials performing discretionary government 21 functions are protected from persorial liability for civil damages 22 insofar as their conduct does not violate Clearly established 23|| statutory or constitutional rights of which a reasonable person 24 snould have knowledge. Harlow v. Fitzgerald, 457 U.S. 800, 818, 25 || 102 S. Ct. 2727, 2738, 73 L.Ed.2d. 396 (1982). 26 || 20. Whether an official protected by qualified immunity 27|; may be held personally liable for an allegedly unlawful official 2g8|| action generally turns on the objective legal reasonableness of Gibsen Gunn & Crutcher -li- -F~ -) tr the action assessed in light of the legal rules that were clearly established at the time the action was taken. Anderson v. Creighton, U.S. , 107 S. Ct. 3034, 3038, 97 L.Ed.2da 523 (1987). 21. Plaintiff sufficiently alleges in the Second Cause of Action (which incorporates paragraphs ll, and 10-15 of the Complaint) that the Private Defendants were federal actors acting under federal law. Schowengerdt . General Dynamics Corporation, 823 F2d 1328, 1332 n.3 (9th Cir. 1987). See also: Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 Giesee Oume & Crvicney 24. There are no genuine issues of material fact or evidence of a plan or conspiracy between or among Private Defendants and any of the Bivens defendants in this case. 25. There are no genuine issues of material fact in dispute respecting any of the allegations against the Private Defendants in plaintiff's second cause of action of the Fourth Amended Complaint, and defendants General Dynamics Corporation and Kessel are entitled to judgment in their favor as a matter of law. 26. Judgment should be entered for the Private Defendants and against Plaintiff as to the second cause of action. 27. In light of tne summary judgment granted herein as to the Second Cause of Action, the only federal action stated against the Private Defendants in the Complaint, this Court declines to exercise jurisdiction over the Fourth and Fifth Causes of Action on the basis of the principles set out in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966) and dismisses the Complaint as to the Private Defendants in its entirety. DATED: Kia 25" | 1988 LU . Sie ob ben, JUDGE OF THE UNITED STATES DISTRicT COURT 5761Q -l|3- so ov aA ee S&S YW WD we — oe eels a | 19 2) 25 27 OBERT C. BONNER nited States Attorney : a> REDERICK M. BROSIO, JR. eli Fi} Assistant United States Attorney HS. Pa f Chief, Civil Division DONNA R. EIDE APR vic. Assistant United States Attorney , MAY - | 0: 1100 United States Courthouse . 312 North Spring Street CLESH US Los Angeles, California 90012 CENTRA’ Telephone: (213) 894-2464 BY Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA reas NEAL SCHOWENGERDT, No. CV 83-8007-AAH (Px) | Plaintiff, JUDGMENT Date: April 10, 1989 Time: 10:00 A.M. | V. THE UNITED STATES OF AMERICA, DEPARTMENT OF THE NAVY, JOHN LEHMAN, SECRETARY OF THE NAVY; GENERAL DYNAMICS CORPORATION; C. W. KESSEL; K. D. TILLOTSON; CARL W. JENSEN, and RICHARD S. DAY, Defendants. ed Defendant United States’ Motion for Summary Judgment came on euatexts for hearing on Monday, April 10, 1989, before the Honorable A. Andrew Hauk, United States District Judge, and the Court having considered the pleadings, the memorandum of points and authorities, exhibits, and the oral argument at the time of the hearing, and in accordance with the findings of fact and lconclusions of law entered herein, - - 59° * IT IS THEREFORE ORDERED that judgment be and the same eee hereby is entered in favor of the defendant United States and against the plaintiff and that the first cause of action is dismissed with prejudice. This is a final judgment entered in accordance with Rule 54(b), F.R.Civ.P. DATED: April » 1989. © © oo ~ a as > w ww ITED STATES DISTRICT JUDGE ee PRESENTED BY: ROBERT C. BONNER | y3}United States Attorney FREDERICK M. BROSIO, JR. 14 ASS1 Stant United States Attorney ; , } ; Chief, C2 Vi Divisior 16 fete ‘Lor DONNA R. EIDE hasistant United States Attorney oo orvi a ue & VY WN = — = =e = —_— — = 8 Oe I An Ww & ww’ NY — O 25 27 60"'T ROBERT C. BONNER United States Attorney FREDERICK M. BROSIO, JR. Assistant United States Attl rney Chief, Civil Division DONNA R. EIDE Assistant United States Attorney. 1100 United States Courthouse 312 North Spring Street Los Angeles, California 90012 Telephone: (213) 894-2464 . CLFRK Us i APR Attorneys for Defendant United States of America UNI CENTRAL DISTRICT OF RICHARD NEAL SCHOWENGERDT, Plaintiff, Vv. THE UNITED STATES OF AMERICA, DEPARTMENT OF THE NAVY, JOHN LEHMAN, SECRETARY OF THE NAVY; GENERAL DYNAMICS CORPORATION; C. W. KESSEL; K. D. TILLOTSON; CARL W. JENSEN, and RICHARD S. DAY, Defendants. ett Qa weet Ue i 7 CD TEE CET EP EP TEP EE Tne defendants’ Motion for hearing on April 10, 1989 before the United States District Judge. pleadings, the moving and opposition documents, hearing, of va tm eabslchiontoVs aowrts mall rf Gaur whieh ove Waal wor TED STATES DISTRICT COURT 2g ° MAY ~ 4 1989 ey TRAL DiSTadCT OF CALIFOKNIA DEPUTY No. CV 83-8007-AAH (Px) FINDINGS OF FACT AND Summary Judgment came on for The Court having considered the exhibits, and the oral argument at the time of the now makes the following findings of fact and conclusions foc anckeoel | ta | -57- CONCLUSIONS OF LAW Date: 1989 Time: April 10, 10:00 A.M. Honorable A. An@rew Hauk, papers and accompanying — - - ) ) e S | —_— on nae 25 27 m® w ct ( ~ there UNCONTROVERTED PACTS The Court adopts the Findings of Fact In Re Motion For them by reference as though fully set forth here. Tl CONCLUSIONS OF LAW Le Summary judgment is proper if there is no genuine any material fact and the moving party is entitled to nt aS a matter of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, $1 L.Ed.2d 20 ("Liberty Lobby"); Fed.R.Civ.P. 56(c The mere exis e factual dispute will not defeat an otherwise properly J r c £ = af v be no genuine issue of material fact Liberty Lobby, i, A¢ ~ iy r ~ - t 247-48, 106 S.ct. at 2510 (emphasis in original wr , é The threshold question in evaluating a mmary jud motion is whether there is a need for a trial because there exists a genuine factual issue which is capable to being res in favor of either party that requires resolution by a fact finder Liberty Lobby, 477 U.S. at 250, 106 S.Ct. at 25} determination of whether a given factual dispute requires Submission to a jury is governed by the substantive evidenti Jard of proof that would apply at trial in case. Id. at + >» wo t) Summary Judgment Filed on Behalf of Defendants Tillotson, Jensen, and Day which were filed on December 29, 1988 and incorporates 25 27 3. If the non-moving party will bear the burden of proof at trial on an element essential to its case, and that party fails to make a showing sufficient to establish the existence of that element, then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986) ("Celotex"). The summary judgment movant may thus meet its burden of showing the absence of an issue of material fact by pointing out that the plaintiff's proof is lacking concerning an element essential to its case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. 4. Where a defendant moves for summary judgment basec on the lack of proof of a material fact, the plaintiff must demonstrate that there is sufficient evidence on which the jury could reasonably find for it; "(t]he mere existence of 4 Scintilla of evidence in support of the plaintiff's position will be insufficient.” Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512. “The evidence of the nonmovant is to be believed and all justifiable inferences are to be Grawn in favor of the Nonmovant." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513 (citation omitted). 5. And while the evidence of the non-movant plaintiff must be believed and all reasonable inferences drawn in its favor, "'ijf the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-250, 106 S.ct. at 2511. Id. (Citations omitted). 6. The allegations in paragraph 1l of the fourth amended complaint allege an invasion of privacy -- more specifically -- the tort of intrusion into private affairs. e3- o 1 2 3 4 b) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2) 25 27 7. The lack of clarity of the meaning of "wrongfully and eee in paragraphs 12-14 of the complaint requires analysis of those allegations under two theories of common law tort liability. If plaintiff intends to allege that the disclosures were "wrongful and erroneous” because the information disclosed was false, then the allegations are properly Characterized as libel or slander. If plaintiff intends to allege that the disclosures were "wrongful and erroneous” because, even if true, should not have been made, then the tort alleged is public disclosure of private facts - one of the four branches of the general invasion of privacy tort recognized in California. See generally Vol. 5, B.E Witkin Summary of California Law, 1988, §§ 577-592, Pp. 672-89. For the reasons set forth below, none of these torts are actionable in this case. 8. The Federal Tort Claims Act, 28 U.S.C. § 2680(h), bars "Any Claim arising out of... libel, slander, misrepresentation -" In determining whether a claim is barred by § 2680(h) the court must look beyond the label to determine if the claim is barred. Thomas-Lazear v. F.B.1., 851 F.2d 1202, 1207 (9th Cir. 1988). Moreover, section 2680(h) does not merely bar claims that are specifically labeled as those stated in § 2680(h). “In sweeping language it excludes any Claims arising out of (slander, libel, or misrepresentation]." United States v. Shearer, 473 U.S. 52, 55, 105 S.Ct. 3039, 3042, 87 L.Ed. 38 (1985). 9. If the essential wrong plaintiff is alleging in paragraphs 12-14 of the fourth amended complaint by the language pike | | 25 27 or has a tendency to injure him in his occupation, then B.Witkin, Summary of California Law, 1988, §§ 471-481 pp. Id. at 272. is the place where the acts occurred. 28 U.S.C. § 1346; nited States, 826 F.2d 806, 809 (9th Cir. 1987). on "wrongful and erroneous disclosure” is that a matter was 1) published i.e. communicated to a third person who understands its meaning and application to the plaintiff, 2) that is false and unprivileged and, 3) which expose the person contempt or ridicule plaintiff's claims arise out of slander and libel. (See Vol. 5. 557-565). i/ These causes of action are therefore barred by 28 U.S.C. §2680(c). 10. The elements of the tort of public disclosure of private facts are 1) public disclosure, 2) of a private fact, 3) lpersor and, 4) which is not of legitimate public concern. D-a2 lv. Oakland Tribune, Inc... 139 Cal.App. 3rd 118, 126, 188 Cal. IRptr. 762 (1982). "Public disclosure” in this context means publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few. It must be a public @isclosure, not a private one. Kinsey V. Macur, 107 Cal.App. 3rd 265, 271, 165 Cal.Rptr. 608 (1980). Communications to a single recipient for a lspecific, nonmalicious purpose does not constitute invasion of l1/ California law governs the liability of the United States under the Federal Tort Claims Act in this case because California Garcia Vv. Co orn A RR & |W WY = ee | wine O 14 25 27 ll. With respect to paragraph 12, plaintiff alleges that federal employees advised the Posta] Service that plaintiff was sending and receiving pornographic literature and photographs through the mail. Based on the evidence this conduct does not constitute public disclosure of private facts. The conversation did not identify the plaintiff by name. The recipient of the information from Jensen at the Postal Service could not have attributed the actions to the plaintiff. Thus, the communication can not be characterized as a disclosure at all. Jensen's conversation with an agent of the Postal Service does not constitute a publication. It was not communication to the public in general or even to a large number of persons It was merely a communication to a single recipient € c ati sino Tim - S = = = -Or a specific, nonmalicious purpose Such communication is not an invasion of privacy Id 12. Paragraph 13 of the fourth amended complaint all m wa wo that federal employees wrongfully and erroneously advisec Plaintiff's employer and the Naval Reserve that plaintiff was involved in sodomy and homosexual activity. Basec on the @vidence and conclusions of law entered previously, the conduct does not constitute public disclosure of private facts. There was no publication; it was a disclosure made to a very limited group for a legitimate governmental purpose. The disclosure therefore fails to meet elements 1 and 4 of the tort of invasion of privacy. The disclosure cannot be characterized as offensive and objectionable to the reasonable person, It was done out of | + + mM wo a c? + = ey cr m rs c ry + , 2) concern -- that p aie wo or, a wv & WY WN = ee ee ee ee ee nh — ‘iater CAURT NITED STA P | Kav 1 6 088 UNITED STATES DISTRICT COURT FQR THE CENTRAL DISTRICT OF CALIFORNIA RTFAL DISTRICT OF CALIFE = | RICHARD NEAL SCHOWENGERDT, ) No. CV 83-8007-AAH(Px) Plaintiff, JUDGMENT Vv. ) Date: November 13, 1989 ) Time: 10:00 A.M. THE UNITED STATES OF AMERICA, ) DEPARTMENT OF THE NAVY, ) JOHN LEHMAN, SECRETARY OF THE ) NAVY; GENERAL DYNAMICS ) CORPORATION; C.W. KESSEL; ) K. D. TILLOTSON; CARL W. ) JENSEN, and RICHARD S. Day, ) . ) ) ) Defendants. Defendants Department of the Navy and the Secretary of the Navy's Motion for Summary Judgment came on regularly for hearing on Monday, November 13, 1989 before the Honorable A. Andrew Hauk, United States District Judge, and the Court having considered the pleadings, the memorandum of points and authorities, exhibits, and the oral argument at the time of the hearing, and in accordance with the findings of fact and conclusions of law entered herein. . to, wow wonwea neds ww WN = —_— ole ys anu Se WY NY SS «CO 19 IT IS THEREFORE ORDERED that judgment be and the same hereby is entered in favor of the defendants Department of the Navy and the Secretary of the Navy and against the plaintiff and that the first cause of action is dismissed with prejudice. This is a final judgment entered in accordance with Rule 54(b), PF.R.Civ.P. KA. AIRTW HAUK UNITED STATES DISTRICT JUDGE PRESENTED BY: GARY A. FEESS United States Attorney FREDERICK M. BROSIO, OR. Assistant United States Attorney Chief, Civil Division 4 DONNA R. EIDE Assistant United States Attorney Attorneys for Defendants Secretary of the Navy and the Department of the Navy —- ee - ~—- a — . — -——— ee eee ee ee ee ne ee a ee _ epee COUT GARY A. FEESS United States Attorney FREDERICK M. BROSIO, JR. Assistant United States Attorney Chief, Civil Division DONNA R. EIDE Assistant United States Attorney 1100 United States Courthouse 312 North Spring Street- 12, Nov &4 Los Angeles, California [90Dt2 oR es — cay | Fi =|) Telephone: (213) 894-2}64@e BS ooo 2°7 xert | L. : Attorneys for Defendants Crp Secretary of the Navy and the Department of the Navy pour ca is ix ve ~~ r 4 15. .J j ’ DEPL. + inne , NOV | 3 1980 ~s ne AK U.S. DISTRICT COURT ie YB GENTAAL DISTRICT ~~ LUFORK | UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA RICHARD NEAL SCHOWENGERDT, Plaintiff, Vv . THE UNITED STATES OF AMERICA, DEPARTMENT OF THE NAVY, JOHN LEHMAN, SECRETARY OF THE NAVY; GENERAL DYNAMICS CORPORATION; C.W. KESSEL; K. D. TILLOTSON; CARL W. JENSEN, and RICHARD S. Day, Defendants. ee eee ee ee ee eee No. Date: Time: CV 83-8007-AAH(Px) November 13, 1989 10:90 A.M. STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW ole I ia UNCONTROVERTED FACTS 1. In this motion, the defendants the Department of Navy and the Secretary of the Navy, move for summary judgment in their favor regarding the third cause of action ("Count III") set forth in the Fourth Amended Complaint. 2. Plaintiff maintains that his Constitutional rights secured under the First, Fourth, Fifth and Ninth Amendment were violated when he was discharged from the Naval Reserves. He also Oo oo Ys BA eR & WwW WW alleges that the decision to discharge him was arbitrary and — oO capricious and not supported by substantial evidence. He seeks — a declaratory relief and reinstatement to his former position with 12 13 the Naval Reserve with all “rights and benefits to which he is 14 entitled.” 15 3. As a result of the discovery of the evidence in 16 plaintiff's office at his employment as a civilian engineer with the United States Navy at the NAVSEA facility at Pomona (see eee ~ Findings of Fact and Conclusions of Law ("FFCC") entered by this Court on December 12, 1988, 44 1-80), plaintiff was discharged 20 from the Navy. He held the rank of a chief warrant office in the Naval Reserve and was assigned to the Pacific Missile Test Center 22 at Point Magu, California. 4. The Navy initiated plaintiff's discharge by memorandum %“ dated March 8, 1983. In that memorandum, plaintiff was advised 25 that he was to be separated as a member of the Naval Reserve %6 because he had admitted to being bisexual. Concurrently with the 27 issuance of that memorandum, the Navy requested that a board of 9g |;officers be convened to consider plaintiff's case. Plaintiff i “ae a woeeovr awn ss» Ww WN = ee ee YI A UR & WY NY — OC rejected the option of resignation and advised the Navy he would appear before the board of officers. 5. informed of his rights before the board and given a copy of the Navy policy concerning homosexuals. Among the rights provided to plaintiff at his hearing before the board were the right to military appointed counsel, full access to all statements, documents or records to be considered by the board, the names of all witnesses, the right to present evidence, sworn statements, argument, 6. case. A written summary of the hearing was prepared. Subsequent to the presentations of factual evidence and argument, the board of officers found by a vote of 3 to 0 that plaintiff had admitted that he is bisexual and, based on that finding, recommended plaintiff's discharge from the Naval Reserves under honorable conditions. The board's recommendation was referred to the Secretary of the Navy by memorandum dated June l, 1984. oa correction of military naval records, seeking “reinstatement in the Naval Reserves". In the application, plaintiff maintained that the board had insufficient evidence upon which to base its finding that plaintiff had stated he was bisexual. On October 3, 1984 plaintiff was informed by memorandum from the Secretary of the Navy that he was honorably discharged from the U.S. Naval Reserves effective June 7, 1984. By letter dated September 4, 1985, plaintiff was informed that his application for correction of records was denied, By memorandum dated April 20, 1983, plaintiff was and rebuttal, and the right to cross examine any witness. On June 23, 1983, the board convened to hear plaintiff's On March 2, 1984, plaintiff filed an application for o ort A RR & WY WD = -— om es «= = os = om | es © 2 a | 26 27 8. Plaintiff timely exhausted his administrative remedies by seeking review of his discharge when he filed an Application for Correction of Military Naval Records on March 2, 1984. Thereafter, plaintiff filed suit in federal district court. 9. As the record of hearing the board of officers establishes, the basis for plaintiff's discharge was that he had Stated that he was bisexual. The finding was based on certain letters written and received by plaintiff discovered during the search of his civilian employment office at Pomona on August 9, 1982. It was also based on a statement plaintiff made to the Naval Investigative Service (NIS) special agent investigating the discovery of the letters. In an interview with the NIS agent on August 11, 1982, plaintiff stated that he was bisexual. 10. As a defense to this evidence, plaintiff maintained that although he held himself out as a bisexual, had solicited sexual encounters with both men and women in the letters, and had indicated in the letters that he had previously performed fellatio with men, he was not actually bisexual. Plaintiff maintained that such writings were mere fantasy. The board did not accept plaintiff's explanation as credible. Plaintiff also maintained that he did not state to the NIS agent that he was bisexual. The board did not find plaintiff credible on this point and chose to believe the NIS agents version of the interview. II CONCLUSIONS OF LAW ll. The applicable Department of the Navy regulations, Secretary of the Navy Instructions ("SECNAVINST") 1900.9D (id. at ohThe second issue in Ginn was whether the EOC's activities constituted “state” action—referring to both state and federal acuon—and the court concluded that they did. Ginn, 553 F.2d at 481. 16,17 20 SCHOWENGERDT v. GENERAL Dynamics Corp. of Wald, J.); id at 1063 (Bork, J., concurring in part)(staling that “a private person whose conduct is allegedly instigated and directed by federal officers should be treated as a federal agent” and “be subject to Bivens liability”). The Fifth and Sixth Circuits are in accord. See Dobyns v. E-Systems, Inc., 667 F.2d 1219 (Sth Cir. 1982); Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392 (6th Cir. 1975\per curiam)."* [13] A second aspect of the pnvate defendants contention is that their action was not “federal action.” The existence of governmental action is a question of fact. See Howerton v Gabica, 708 F.2d 380, 383 (9th Cir. 1983). Because, at this stage of the case, we must accept the plaintiff's factual allega- tions as true, we do not look beyond the complaint. The First Circuit, in Fletcher v. Rhode Island Hosp. Trust Bank, 496 F.2d 927, 932 n.8 (1st Cir), cert. denied, 419 U.S. 1001 (1974) found, with- out explanation, that there is no cause of action against private parties act- ing under color of federal law. However, in a subsequent case the First Circuit analyzed a constitutional claim against a pnvate corporation alleged to be a federal actor and did not rely on Fletcher, rather the court seemed to assume that a cause of action would Le if the pnvate corporation were in fact a federal actor. See Gerena v. Puerto Rico Legal Servs., Inc. 697 F.2d 447, 449 (1st Cir. 1983). The Gerena court found that the defendants were not federal actors and held that the plaintiff's complaint had been properly dismissed on that basis. /d. at 452. In Wagner v. Metropolitan Nashville Airport Auth. 772 F.2d 227 (6th Cir 1985) the district court concluded that the plaintiff's complaint was insufh- cient to raise a Bivens claim because 11 failed to allege that the defendants were federal agents. In affirming the distnc’ wrt's decision, the Sixth Cir- cuit stated that the “failure to allege th: defendant ... was a federal employee renders the pleading insufficient under Bivens.” Jd. at 230 (em- phasis added). If the Wagner court intended to limit Bivens liability to fed- eral employees, it is in conflict with the Sixth Circuit's earlier decision in Yiamouyiannis. Whatever the Wagner majonty’s intent, we agree with Judge Martin's concurring opinion, in which he stated: “I do not believe that Wagner had to allege that Myers was a federal employee [He] only had to allege that Myers was a federal agent... . Because Wagner failed to allege that Myers was a federal agent or federa] employee, this distinction does not affect the result in this case.” /d. at 231 0.1 (Martin. J, concur- ring). SCHOWENGERDT v. GENERAL Dynamics Corp. 21 Schowengerdt’s complaint alleges facts that, if true, support a finding of government action,” but the final determination Many tests or factors have been articulated for use in determining the existence of sufficient state action. See Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983 listing tests and citing cases). At least two of these seem applicable. First, Schowengerdt alleges that the second search of his office was carned out by Kessel and two federal employees. Under the “joint action” test, a private party is acting under color of state (or federal) law if “he is a willful participant in joint action with the [government] or its agents.” Dennis v. Sparks, 449 U.S. 24, 27 (1980), Howerton, 708 F.2d at 383. “{W]Jhen the claim is that the private parues have jointly participated with a [government] official, ordinanly proof of the joint partiapation would establish both state action and action under color of state law.” /d. at 383 0.5. In Howerton we found that police participation in an ulegal evic- thon transformed the landlord's participation into state action. See id. at 384. Under Howerton, if the second search was as alleged, Kesscl’s joint participation would clearly be “state action.” Second, under the “public function” test, the Supreme Court has “found state action present in the exercise by a private entity of powers tradiuon- ally exclusively reserved to the State.” Jackson v Metropolizan Edison Co., 419 US. 345, 352(1974), see also Fidelity Fin. Corp. v Federal Home Loan Bank. 792 F.2d 1432, 1435 (9th Cir. 1986), cert. demied, 107 S. Ct. 949 (1987). It is alleged that the private defendants provided secunty for the naval facility. That searches were conducted on behalf of the government “indicate{s] the assumption of a police activity which is clearly a public function.” Dobyns v. E-Sysiems, Inc., 667 F.2d 1219, 1226 (Sth Cir. 1982), see also Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1430 (10th Cir. 1984) finding that where local police allowed store security guard “to sub- stitute his judgment for that of the police”, “[s}uch cooperative activity between the police department and a private party is sufficient to make [the guard] a party acting under color of state law”), cert. denied (as to the pri- vate defendants), 106 S.Ct. 65 (1985); Thorne v. City of El Segundo, 726 F 24 459, 471 n.11 (9th Cir. 1983) finding that private person who admin- istered polygraph exams for police department was a state actor because he acted on behalf of and was paid by the government), cert. denied, 469 US. 979 (1984), Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1322 (9th Cir. 1982("[A] private towing company acting at the behest of a police offi- cer and pursuant (o a statutory scheme designed solely to accomplish the state’s purpose of enforcing its traffic laws, acts under color of state law "). Cf Del's Big Saver Foods, Inc. v. Carpenter Cook, Inc, 195 F.2d 1344, 1346 (7th Cir. 1986\"A state cannot avoid its obligations under the due process clause by delegating to private persons the authority to deprive people of their property without due process of law.) 26,2 —_—— - —— 22 SCHOWENGERDT v. GeneRAL Dynamics Corp of this issue must be made by the district court on remand See Reuber, 750 F.2d at 1054-55. If the district court finds the governmental action requirement satisfied, defendants Kes- sel and General Dynamics may not rely on their private-party siatus as a basis for dismissal. Alternative Regulatory Scheme as a Special Factor In Bush v. Lucas, 462 U.S. 367 (1983), the Supreme Court held that the existence of “an elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures —administrative and judicial—by which improper action may be redressed,” id. at 385, was a “special factor” that made a Bivens remedy unavailable to a federal civil servant who had statutory redress for his illegal demotion claim Schowengerdt, a federal civil servant, can press a Bivens action only if the constitutional violations he claims cannot be adequately addressed unde. the regulatory scheme that governs the relationship between the government and its employees. There are no statutory remedies for illegal searches and seizures carried out by the government against its employees. 5 U.S.C. sections 7513, 7701, and 7703 pro- vide substantial procedural protections for federal employees against whom adverse personnel actions are taken. The cov- ered actions include removal, suspension for more than four- teen days, reduction in grade or pay, and furlough of thirty days or less. § U.S.C. § 7512(1}{5). But, as the Supreme Court noted in Bush, a warrantless search directed at an employee is not an “adverse action” covered by the statutory scheme. See 462 U.S. at 385 0.28. [14] In addition, certain personnel practices against federal civil servants are prohibited under 5 U.S.C. section 2302 Procedures for investigating and remedying such practices are provided for in 5 U.S.C. sections 1206, 1207, and 1208 However, section 2302 prohibits only practices respecting the exercise of authonty over a “personnel action.” 5 US.C SCHOWENGERDT v. GEexerat Dynamics Corr 23 § 2302(b). “Personnel actions,” for the purposes of section 2302 are specifically listed. They include, for example, appointments, promotions, transfers, and decisions relating to pay. 5 U.S.C. § 2302(a(2). Schowengerdt complains of none of these. His wrong stems from the search. As the Supreme Court noted in Bush, warrantless searches are not “personnel actions” within the statutory scheme. 462 U.S. at 385 n.28. In sum, Congress has not acted to regulate the aspect of governmenvVemployee relations at issue in this case, and, thus, the “special factor” present in Bush is wholly absent here. B. Statutory Claims In addition to his constitutional claims, Schowengerdt alleges violations of several federal statutes. With one possi- ble exception, we conclude that the statutory claims were properly dismissed. 1. 18 USC. § 1385 {15] Schowengerdt claims that the defendants violated 18 U.S.C. § 1385," the Posse Comitatus Act. Because section 1385 by its express terms is inapplicable to Navy involve- ment in law enforcement, United States v. Roberts, 779 F.2d 565. 567 (9th Cir.), cert. denied, 107 S.Ct. 142 (1986), Schowengerdt has no cause of action under the statute. "Section 1385 provides Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or oth- erwise to execute the laws shall be fined not more than $10,000 or impnsoned not more than two years, or both. We do not speak to any other statutes that may proscnibe Navy involve- ment, but find only that 18 U.S.C. § 385 does not. 22,23 aL Dynamics Corp WENGERDT v. GENER what ~ 24 SCHOVENCE — a 2 18 US.C.§ 1702 ——— jolation of 18 U S.C 6) Schowengerdt also claims 3 V cen § on * Even if Schowengerdt bas a pny ate => ne “7 , se of ac tatute,™ he has not stated a cau : pres cusles 1702 protects only correspondence in to US mails that has not been received by the gegen Giraud v. United States, 348 F.2d $20, 822 (oh Cit. 196 } 966y, see a Stat -ert. denied, 382 US. 1015 (1 pect 425 F.2d 1172, 1174 (9th Cir. 1970 per saree = | tters, that Schowengerdt claims were seized, were in 4 aiaiics and, therefore, were either unmailed of aireao) 1 , received. 3. 18USC. $§ 2510-2520 17] The complaint also alleges violations of 18 : S.C : ire 510-2520 which concern interception of oral and » ~ . unications and authorize pnvate suit for —_— : mm he US C. § 2520 Defendants claim that any action ree mes sect ‘ot nger missed because Schowe ions should be dis gong e communication ed that any oral or wir ot pat While they are correct, Schowengerdt, in his me Section 1702 provides: . Whoever takes any letter, postal card, or package out at yon : : | matter, or from any autborued depository for mai pa m a camer, or which has been in any post office or — ewes ‘ened or in the custody of any letter or ome ve \ bas been delivered to the person to whom it was srected, pars ete to obstruct the correspondence, or to pry into the ay 0 pons or secrets of another, of opens. —— —, = destroys the same, shall be fined not more than $2,000 or imp’ oned not more than five years, or both re the defendants claim that there is no pnvate nght of acuon a md o the case law supports them. Sciolino v Mazine nay coon penne 463 F Supp. 128, 131-34 (WDNY ae 9, oo “er pred Club vy. Rumsfeld, 410 F Supp. 144, 162 (DDC. 1976), Hult F Supp 1368, 1371 (N_D. DL 1975) SCHOWENGERDT v. General Dynamics Corp 25 - randum in opposition to the motion to dismiss, does allege facts that indicate violations of these sections. Accordingly, this pleading defect presumably could be cured by amend- ment 4. 42US.C. §1985(3) {18] The defendants claim that Schowengerdt cannot state a cause of action under 42 U.S.C. § 1985(3) because he has not alleged racial or other class-based animus. Such animus is a requirement for a cause of action under the statute. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); AMollnow vy. Carlton, 716 F.2d 627, 628 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). The only class to which the complaint might have ref- erence, one based on sexual preference, does not support a section 1985(3) action. See DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 332-33 (9th Cir. 1979). 5. Privacy Act Schowengerdt alleges that defendant Lehman violated the Privacy Act, § U.S.C. § 52a, by mailing to Schowengerdt’s home a letter, which was intercepted by members of his fam- ily, informing him that he was being considered for discharge from the Naval Reserve due to his sexual activities. 5 U.S.C. § 552a(b) limits the disclosure of federal agency records; § 552a(gX1) provides a private cause of action against an agency for failing to comply with § 552a(b). The agency 1s the only proper party to such a suit; the civil remedy provisions do not apply to individual defendants. See 5 U.S.C. § 552a(g) (1); Unt v. Aerospace Corp, 765 F.2d 1440, 1447 (9th Cir. 1985). Assuming without deciding that the head of an agency sued in his official capacity is a proper defendant, see Hewi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2218%3A2. 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