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MACK v. UNITED STATES

April 18, 1986

John P. Mack, Plaintiff,
v.
United States of America, Federal Bureau of Investigation, Defendant



The opinion of the court was delivered by: LEVAL

MEMORANDUM AND ORDER

 PIERRE N. LEVAL, U.S.D.J.

 This is an action against the United States and the Federal Bureau of Investigation ("FBI") for damages and injunctive relief arising out of plaintiff John P. Mack's termination as an agent of the FBI. Plaintiff was terminated in part because a urinalysis revealed he had taken cocaine up to 24 hours before the test. Defendants move for summary judgment claiming that plaintiff's claims are groundless and that this court lacks subject matter jurisdiction.

 I. Facts

 The following facts are either undisputed or taken as alleged by plaintiff. Until September 1983, plaintiff was employed as an FBI agent in New York. On July 13, 1983, he was interviewed during an internal FBI investigation because of his association with another FBI agent who was suspected of dealing in drugs. At the interview, he was told that he was suspected of drug use and asked to submit to a polygraph and urinalysis and provide sworn statements. That same day, plaintiff gave a urine sample and signed sworn statements denying the use of any narcotics while a FBI agent. He also signed a form granting consent to the urinalysis. Although plaintiff initially stated in a deposition that he was not forced to give the urine samples and did so voluntarily, he now contends that he was coerced into submitting to the tests by being told that a refusal would be held against him.

 The urinalysis revealed the presence of an element of cocaine as well as cocaine itself, indicating drug use within the past 12-24 hours. Plaintiff was informed of these results and later on July 15, signed another sworn statement that he had no explanation for the results and that he was not under any doctor's prescription. In a letter dated July 29, 1983, plaintiff was advised that the FBI was considering firing him for his drug use and lack of candor. Through his attorney, plaintiff responded to these charges in a letter dated August 11, 1983, arguing that his dismissal was unjustified. On September 9, 1983, the FBI informed him he was terminated and that he could appeal to the Director of the FBI, which plaintiff declined to do.

 The initial complaint asserted subject matter jurisdiction under 28 U.S.C. § 1331, the Constitution, and 5 U.S.C. § 5596, and sought $ 1 million compensatory damages and $ 3 million punitive damages. An amended complaint adds a claim of jurisdiction based primarily on the Federal Torts Claim Act ("FTCA"). In essence, plaintiff contends he was forced to give a urine sample, improperly terminated without an opportunity to be heard and wrongfully stigmatized in violation of his Fifth Amendment property and liberty interests, his rights under the Fourth Amendments and his common law right of privacy. All of these claims fail as a matter of law.

 II. Discussion

 A. Sovereign Immunity

 It is well settled that the United States or an agency thereof is subject to suit only to the extent that Congress waives its sovereign immunity. *fn1"

 As to his constitutional claims, none of the statutes asserted in the complaint presents a basis for finding a waiver of sovereign immunity. Neither the federal Constitution nor the general federal question jurisdictional statute, 28 U.S.C. § 1331, constitutes a waiver by the United States of its sovereign immunity. *fn2" See Keene Corp. v. United States, 700 F.2d 836, 838 n.3 & 845 n.13 (2d Cir.), cert. denied, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983); Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir. 1980); Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir. 1978). Nevertheless, even assuming the United States has waived its sovereign immunity as to the constitutional claims, plaintiff has no basis for relief under the Fifth and Fourth Amendments.

 B. Fifth Amendment Due Process Claims

 A Government employee has a protected property interest in his employment if he has an expectation of continued employment guaranteed by a statute, contract or policy. See Arnett v. Kennedy, 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974); Roth v. Board of Regents, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972); Doe v. Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1100 n.8 (D.C. Cir. 1985). As an FBI agent, plaintiff had no statutory right to continued employment. Although competitive civil service employees may be discharged "only for such cause as will promote the efficiency of the service," 5 U.S.C. § 7513(a); see id. at § 7511(a) (defining employees covered), FBI agents are specifically excepted from competitive civil service under 28 U.S.C. § 536. *fn3" As an excepted service employee, plaintiff could be discharged with or without cause. See Doe v. Department of Justice, 753 F.2d at 1100; Carter v. United States, 132 U.S. App. D.C. 303, 407 F.2d 1238, 1242 (D.C. Cir. 1968). He also had no statutory right to any particular pretermination procedures or to judicial or administrative review of the termination decision. See Williams v. Internal Revenue Serv., 240 U.S. App. D.C. 326, 745 F.2d 702, 704 (D.C. Cir. 1984) (per curiam); Schwartz v. Department of Transportation, 714 F.2d 1581, 1582 (Fed. Cir. 1984); cf. 5 U.S.C. §§ 4303(e), 7513, 7701, 7703 (granting preference eligible or competitive service employees various procedural rights for claims of unjust dismissal).

 Plaintiff argues that he was not granted the procedural rights guaranteed him under the FBI's internal disciplinary procedures because he was not given a copy of the urine test results. It appears, however, that he was accorded all the procedural rights he was entitled to under the agency's internal procedures. These procedures entitle an employee to notice of the charges against him and an opportunity to respond. *fn4" Plaintiff does not dispute that he was given such notice and opportunity to respond. The internal disciplinary procedures do not require the agency to furnish plaintiff with copies of the test ...


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