See Wilson v. Pena, 316 U.S. App. D.C. 352, 79 F.3d 154, 164 (D.C. Cir. 1996) (if agency able to take final action on merits of complaint, suit not barred solely for any default in responding to agency's request for information). Indeed, by rejecting the FDIC's proposed issue for investigation, Matos's attorney removed any basis upon which the FDIC could investigate Matos's vague assertions.
Furthermore, the FDIC is not required to provide Matos with her personnel file and its personnel rules in order for Matos to determine whether she has a claim. To impose such a disclosure obligation on the FDIC would unjustifiably burden the agency without advancing Title VII's conciliatory purpose. Indeed, it is clear that under Federal Rule of Civil Procedure 26, plaintiffs may not use discovery to determine whether they have a claim. See Avnet, Inc. v. Am. Motorists Ins. Co., 115 F.R.D. 588, 592 (S.D.N.Y. 1987) (discovery rules not hunting license to conjure up claim that does not exist); Samuels v. Eleonora Beheer, B.V., 500 F. Supp. 1357, 1362 (S.D.N.Y. 1980), aff' without op., 661 F.2d 907, 910 (2d Cir. 1981). A fortiori, it follows that in the administrative context, where discovery is usually not available, a claimant similarly is not entitled to such discovery. See generally NLRB v. Interboro Contractors, Inc., 432 F.2d 854, 857-58 (2d Cir. 1970), cert. denied, 402 U.S. 915, 28 L. Ed. 2d 661, 91 S. Ct. 1375 (1971) (well settled that parties to judicial or quasi-judicial proceedings not entitled to pre-trial discovery as matter of constitutional right); Silverman v. Commodity Futures Trading Comm'n, 549 F.2d 28, 33 (7th Cir. 1977) (Federal Rules of Civil Procedure do not apply to administrative proceedings, nor does Administrative Procedure Act contain any provision for pre-trial discovery in administrative process).
In sum, Matos is required to know the general substance and approximate time of any alleged discriminatory acts prior to filing a formal complaint with the FDIC. This is especially true where, as here, the facts and office rules at issue are not within the sole control or possession of the FDIC, but are facts which she presumably either knows or clearly should have known.
Nor is Matos entitled to review on the merits of her claims because more than 180 days passed from the filing of her initial administrative complaint with the FDIC. See Munoz v. Aldridge, 894 F.2d 1489, 1493 (5th Cir. 1990) (approving of administrative exhaustion even where a case persists in the administrative phase beyond 180 days); see generally Johnson v. Bergland, 614 F.2d 415, 418 (5th Cir. 1980) (where agency does not reach merits of complaint because claimant fails to comply with administrative procedures, court should not reach merits either). It follows that to allow Matos to sue directly in federal court, especially where, as here, the agency dismissed her administrative complaint for failure to prosecute, would frustrate the purposes of administrative exhaustion.
Matos's § 1981, abuse of power and other pendent state law claims, which similarly challenge the circumstances surrounding Matos's discharge, must also be dismissed. Under Brown v. General Serv. Admin., 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976), federal employees are restricted to Title VII when complaining of employment discrimination. See also Annis v. County of Westchester, 36 F.3d 251, 255 (2d Cir. 1994) (although Title VII is not sole remedy for employment discrimination by state and municipal employers, it is clear that federal employees are restricted to Title VII); DiPompo v. West Point Military Academy, 708 F. Supp. 540, 544 (S.D.N.Y. 1989) (summarizing Brown holding that balance, completeness, and structural integrity of federal employment provision of Title VII is inconsistent with contention that judicial remedy afforded was designed merely to supplement other forms of judicial relief). Furthermore, Matos may not bring her breach of contract claim because, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment, not any contractual or quasi-contractual relationship with the government. See, e.g., United States v. Larionoff, 431 U.S. 864, 869, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977); Bell v. United States, 366 U.S. 393, 401, 6 L. Ed. 2d 365, 81 S. Ct. 1230 (1961); Hayman v. United States, 218 Ct. Cl. 729 (1978); see also 5 U.S.C. § 2105 (1996). Therefore, Matos's employment relationship is governed by statute and regulation, not contract. See Hambsch v. United States, 12 Cl. Ct. 744, 750 (1987), vacated for lack of subject matter jurisdiction, 857 F.2d 763 (Fed. Cir. 1988), and cert. denied, 490 U.S. 1054, 104 L. Ed. 2d 437, 109 S. Ct. 1969; (1989).
Moreover, Matos's abuse of process, fraud and defamation claims are barred by the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2680(h), which limits the FDIC's authority to sue and be sued. See 28 U.S.C. § 2679(a) (1994); FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996, 1006, 127 L. Ed. 2d 308 (1994); 12 U.S.C. § 1819(a) (1989). Pursuant to the FTCA, these claims are exempt from any waiver of immunity, and thus may not be brought against the FDIC or the United States. See 28 U.S.C. § 1346(b) (1993), 28 U.S.C. § 2680(h) (1994); see also Plaintiff's Answering Memorandum at 6 (conceding that fraud and defamation claims barred).
Nor can Matos assert a claim under the FTCA's waiver of immunity for abuse of process based on actions by investigative or law enforcement officers because the FDIC was not acting in such a capacity. See 28 U.S.C. § 2680(h) (1994); see generally Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994) (finding that the FTCA does not authorize suits for abuse of process based on the actions of government prosecutors). Furthermore, even if the Court were to construe Matos's abuse of process claim as one pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), the Supreme Court has declined to extend a Bivens cause of action to actions against agencies of the Federal Government. See FDIC v. Meyer, 114 S. Ct. at 1006.
For the reasons set forth above, defendants' motion for summary judgment is granted. The Clerk of Court is directed to enter judgment accordingly and close the above-captioned action.
It is SO ORDERED.
DATED: New York, New York
September 25, 1996
John E. Sprizzo
United States District Judge