Justia Federal District Court Opinions

Plaintiff Dr. Melvin D. Reuber, appeals the district court's dismissal of his Federal Tort Claims Act (FTCA) suit against the United States, and his constitutional tort and common law claims against several federal officials, Litton Industries, Inc. (Litton), Litton Bionetics, Inc. (Bionetics), and numerous employees of Bionetics.¹ Reuber's suits are grounded in the issuance and dissemination of a letter of reprimand from his employer, Bionetics, charging that he mischaracterized personal research as work done under the auspices of the Frederick Cancer Research Center (FCRC), where Reuber worked, and that he did this personal research on company time. The district court in dismissing his claim held that venue did not lie in the District of Columbia for Reuber's FTCA claim or his claims against the individual defendants, that in addition the court lacked personal jurisdiction over the individual defendants, and finally that Reuber's allegations that Litton and Bionetics violated his constitutional rights were insufficient to confer subject matter jurisdiction. It further refused to exercise pendent jurisdiction over the common law claims against the corporate defendants.

We affirm the dismissal of the FTCA actions against the United States and the constitutional and common law tort claims against the individual defendants generally for the reasons stated by the district court. We reverse the district court's dismissal of constitutional and pendent state claims against the two corporate defendants, Litton Industries, Inc., and Litton Bionetics, Inc., and remand these claims to the district court.

From 1976 to April, 1981, Reuber, a Maryland resident, worked as a research pathologist at FCRC, a government-owned facility located in Maryland, which Bionetics operates pursuant to a cost-plus contract with the National Cancer Institute (NCI).² Until 1981, Reuber's employer, Bionetics, was apparently pleased with his work; as late as November, 1980, defendant Dr. Michael Hanna, Director of FCRC, rated Reuber's job performance as outstanding, and earlier in 1981 Reuber was picked to head FCRC's Experimental Pathology Laboratory. See Deposition of Michael George Hanna, Reuber v. United States, Civ. No. 81-1857 [hereinafter cited as Hanna Dep.].³

During this time FCRC encouraged Reuber to do personal research on his own time. Reuber contends that FCRC's policy allowed researchers to take up to one day a week off from official work to engage in "scholarly activities," see Deposition of Melvin D. Reuber at 196-99 [hereinafter cited as Reuber Dep.], which he interpreted to include personal research. Thus, Reuber conducted several studies based on review of NCI slides available at Tracor Jitco, a repository in Maryland for NCI slides. Id. at 29-30. He submitted several of these studies for publication without first clearing them through FCRC and NCI. Reuber also completed numerous FCRC-sponsored studies, which he did subject to the FCRC and NCI clearance process prior to submittal for publication. Unlike his personal research, these studies were required to expressly state:

[t]he work upon which this publication is based was performed pursuant to [the FCRC] Contract ... with the [NCI].

Id., Exh. 4.⁴

In one personal study Reuber submitted for publication in 1979 dealing with the "carcinogenicity of malathion," see Reuber v. United States, Civ. No. 81-1857, slip op. at 1 (D.D.C. Aug. 25, 1982) (Memorandum Opinion),⁵ he reported that after examining 24,000 slides used in prior NCI studies,⁶ he concluded contrary to the results of these studies that malathion did cause cancer in test mice and rats.

B. Events Leading to the Letter of Reprimand

In late 1980, Reuber's malathion paper attracted publicity when the United States Department of Agriculture sought to conduct aerial spraying with malathion in California in an effort to eradicate the mediterranean fruit fly, which threatened the state's agricultural industry. Upon request, Reuber sent a copy of his malathion study to Chris Jenkins, an employee of the John Muir Institute in Berkeley, California. Reuber put his office address at FCRC on the paper, which apparently led Jenkins and others at the John Muir Institute to assume the work was sponsored and approved by FCRC and NCI. According to the government, this misconception was furthered by the John Muir Institute's distribution of a packet which "cited Reuber's study as that of FCRC/NCI." Brief for Federal Appellees, No. 83-1536, at 4.

Following the distribution of Reuber's paper, NCI officials began receiving a succession of telephone calls asking who Reuber was, and whether NCI still stood behind its conclusions in prior studies that malathion was not carcinogenic. See Brief for Appellee United States, No. 83-1536 at 8.⁷ In addition, a letter from a California official to NCI complaining about Reuber's study was forwarded to defendants Adamson and Hartwell, both officials at NCI.

Hartwell and Adamson began an investigation. Hartwell contacted Dr. James Liverman at Bionetics and alerted him to the controversy prompted by Reuber's study. According to Reuber, Hartwell subsequently accused him of misusing government funds and misrepresenting himself as an NCI employee. See Brief for Appellant, No. 82-2376, at 14. Liverman relayed these allegations to defendant James Nance, President of Bionetics, who in turn notified FCRC Director Hanna of them.

At the same time, according to the government, Adamson checked with NCI pathologists and other scientists involved in the original malathion studies and concluded that their negative findings on the carcinogenicity of malathion were correct. See Brief for Federal Appellees, No. 83-1536, at 9. He contacted Hanna with this information.

The parties disagree about the events that ensued. According to the government, "Dr. Hanna took the matter over from there." Brief for Federal Appellees, No. 83-1536, at 10. Hanna originally wanted to fire Reuber, but was convinced not to do so by defendant Dr. Vincent DeVita, the director of NCI and the person ultimately responsible for the review of Bionetics' FCRC contract. Id. Hanna instead drafted a strong letter of reprimand, and despite suggestions by defendant Dr. William Payne, an NCI official, to "tone it down a bit," sent it as originally drafted. Id.

According to Reuber's version, on the other hand, Hanna was pressured into disciplining Reuber by NCI officials who were "very upset" by Reuber's reinterpretation of the NCI [malathion] studies and his labelling as carcinogenic chemicals that NCI had found to be noncarcinogenic. Brief for Appellant, No. 82-2376, at 17. Reuber alleges that Hartwell "went around the NCI telling people that this time he was 'going to get' plaintiff." Id. He also claims that, although NCI generally does not make employment decisions regarding Bionetics' employees at FCRC, Adamson instructed Hanna to call Reuber to "straighten ... out" matters, id., and "DeVita ... insisted" that Hanna write the letter of reprimand. Brief for Appellant, No. 83-1536, at 11.

Hanna's letter of reprimand, dated March 26, 1981, admonished Reuber for "mishandling of scientific data and unrestrained interpretations of those data, ... [and] operat[ing] under the guise of the endorsement of both NCI and [FCRC]." Docket No. 12, Reuber v. United States, No. 82-2376 (filed Sept. 17, 1981). The letter stated that Reuber's "obstreperous actions" created a "public distrust and lack of confidence in ... [NCI] authorities who administer the carcinogenesis testing program," and gave "the impression that the NCI may be administering programs of questionable competency." Id. Hanna ordered that Reuber thereafter "adhere to the rigid policy of internal scientific review and clearance through [Hanna's] office and through [NCI] administrative offices" for "all publications that [Reuber] is associated with." Id.

Hanna sent copies of this letter to defendants DeVita, Adamson, Hartwell and Payne, all of whom are NCI officials, as well as to defendants Nance and I.J. Fidler at Bionetics. Several of the recipients showed the letter to other people at NCI and Bionetics. See Brief for Appellee, No. 83-1536, at 12. Shortly thereafter, an unknown person or persons posted the letter on Environmental Protection Agency (EPA) bulletin boards in the District of Columbia. See Joint Appendix, No. 83-1536, at 115 [hereinafter cited as J.A.]. Reuber alleges that the letter was "freely circulated by pesticide industry lobbyists around Washington [D.C.]" See Brief for Appellant, No. 83-1536, at 13. Eventually, news of the reprimand with substantial excerpts from the letter was published in Food Chemical News, a District of Columbia trade publication.

Reuber alleges that the publicity about the reprimand greatly upset him and caused a high blood pressure condition which endangered his physical health. See Brief for Appellant, No. 83-1536, at 13. On April 24, upon the advice of his doctor, Reuber resigned from his job at FCRC. He then filed suit in federal courts in both the District of Columbia and Maryland as well as in the Maryland state court.⁸

The United States contested Reuber's FTCA action on grounds of improper venue. The applicable venue provision states:

Any civil action on a tort claim against the United States under [the FTCA] may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.

28 U.S.C. Sec. 1402(b). The district court held that venue was improper since "plaintiff's tort claim against the United States occurred in Maryland. It was in Maryland that the letter [of reprimand] was written, given to plaintiff and maintained [in NCI and FCRC files]." Reuber v. United States, Civ. No. 81-1857, slip op. at 6 (D.D.C. Oct. 27, 1982) (Memorandum Opinion) [hereinafter cited as Memorandum Opinion ]. The district court also rejected Reuber's arguments that venue was proper in the FTCA claim as pendent to his continuing Privacy Act claim. See supra note 1. It concluded that the FTCA venue provision, by permitting a tort claim to be brought only in the district where the plaintiff resides or where the act occurred, forecloses application of any discretionary pendent venue doctrine. Id. at 7. Second, it held that Reuber's Privacy Act claim was not sufficiently related to his FTCA claim for invasion of privacy, negligent maintenance of records, and intentional infliction of emotional distress, to support application of the doctrine of pendent venue. Id.

Reuber contends on appeal that "the acts or omissions giving rise to these torts occurred, at least in part, in this District." Brief for Appellant, No. 83-1536, at 19. He points to the fact that the letter of reprimand was eventually leaked to the Food Chemical News, which is published in the District, and that the letter was additionally posted by unknown persons on bulletin boards at the EPA headquarters also located in the District. But the answer to his claim is that the United States can be held liable under the FTCA only for the tortious acts of its employees, see 28 U.S.C. Sec. 1346(b), and Reuber can point to no act in the District by any government employee that caused him any tortious injury.

Reuber also cites Forest v. United States, 539 F.Supp. 171 (D.Mont.1982), in support of his argument that venue lies in the District. Forest held that when air traffic controllers located in Utah radioed instructions to a pilot flying over Montana, causing that pilot to crash, the "act or omission" occurred in Montana, since the radio communications did not "become tortious" until received by the pilot. Id. at 175-76. Forest, however, is distinguishable from the present case. It involved a radio transmission directed specifically to the pilot in Montana, the situs of the "act" could thus be reasonably perceived as including the place at which it was targeted and where the foreseeable harm would occur. So viewed, Forest stands only for the proposition that, when an individual's conduct occurs in one district but has intended effects elsewhere, the act "occurs" in the jurisdiction where its effects are directed. In this case, unlike Forest, Reuber pointed to no tortious conduct of any government employee aimed at the District, or even any conduct which foreseeably would produce consequences in the District; in particular, he identified no specific transmission of the letter or any other adverse information into the District by any federal employee.

Reuber invites us to extend Forest's rationale, however valid on its own facts, well beyond that factual context so as to make these defendants' limited dissemination of the letter in Maryland "occur" wherever the letter was ultimately disseminated causing Reuber harm. Unfortunately for Reuber, the Supreme Court has already rejected a reading of the place where "the act or omission occurred" as including any place where the conduct causes injury, albeit it did so for purposes of determining the appropriate state law to apply in an FTCA claim under 28 U.S.C. Sec. 1346(b).⁹ See Richards v. United States, 369 U.S. 1, 9-10, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962) (Oklahoma law applies to FTCA suit grounded on a plane crash in Missouri caused by negligent failure to enforce regulations that prohibited the practices used by the airline at its overhaul depot in Oklahoma); cf. Sami v. United States, 617 F.2d 755, 761 (D.C.Cir.1979) (foreign country exception to the FTCA does not apply where tortious act or omission occurs in the United States since "[t]he entire scheme of the FTCA focuses on the place where the negligent or wrongful act or omission of the government employee occurred"). Although the Richards Court did not decide the proper interpretation of the phrase "where the act or omission occurred" for purposes of venue, we share its inability "to conceive of any more precise language Congress could have used than the words it did employ in the Tort Claims Act." Richards, 369 U.S. at 9, 82 S.Ct. at 591.¹⁰ We thus decline Reuber's invitation to adopt and expand Forest's rationale, and we find that Reuber has not alleged an act in the District which makes venue over his FTCA claim proper.

We also reject Reuber's attack on the district court's denial of pendent venue over his FTCA claim. Albeit there is no precedent in this circuit dealing with the general availability of pendent venue, we do not address that issue here, for assuming pendent venue is available as a theory, the district court was justified in refusing to apply it in this case. Pendent venue, like pendent jurisdiction, aims to promote judicial economy as well as convenience and fairness to the parties. See Seamon v. Upham, 563 F.Supp. 396, 398-99 & nn. 2-3 (E.D.Tex.1983); cf. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (efficiency, convenience and fairness rationales for pendent jurisdiction). In deciding whether to invoke pendent venue a district court must consider the same factors that bear on economy and convenience as in deciding whether to exercise pendent jurisdiction: whether the pendent and principal claims arise out of a common nucleus of operative facts; whether they present common issues of proof; whether they involve the same witnesses. See Travis v. Anthes Imperial Limited, 473 F.2d 515, 529 (8th Cir.1973) (pendent venue lies for "essentially the same reasons as ... pendent subject matter jurisdiction"); Seamon, 563 F.Supp. at 399 & n. 3. The judicial efficiency rationale for pendent venue makes it clear that "a district court has wide discretion to refuse to hear a pendent claim." United States v. Capeletti Brothers, Inc., 621 F.2d 1309, 1317-18 (5th Cir.1980) (discussing pendent jurisdiction); see also Doe v. Board on Professional Responsibility, 717 F.2d 1424, 1428 (D.C.Cir.1983) (district court decision to assume pendent jurisdiction is "entitled to substantial deference on appeal ...").

In this case, although Reuber's Privacy Act claim and his FTCA claim arise from overlapping nuclei of operative fact, they present many distinct issues of proof. Reuber's Privacy Act claim will require proof as to the propriety of maintaining a record of Reuber's alleged misconduct in NCI files, see 5 U.S.C. Sec. 552a(e)(1), the dissemination of the letter and other information in NCI files by federal officials to persons outside of NCI who had no need to know of Reuber's alleged misconduct, see 5 U.S.C. Sec. 552a(b)(1), and the actual damages, if any, Reuber suffered as a consequence of any Privacy Act violation, see 5 U.S.C. Sec. 552a(g)(4). Reuber's FTCA invasion of privacy claim, on the other hand, will raise questions about the private versus public nature of the information, its offensiveness to a reasonable person, and its counterbalancing newsworthiness, and may involve inquiries into issues relating to special damages. See Restatement (Second) of Torts, Sec. 652D (1976). In addition to considering the likely requirement of differing proof, the convenience and fairness of allowing the FTCA claim to proceed in federal court here, must be assessed in light of the general rule that, when the United States waives sovereign immunity, it may choose the conditions under which a suit against it is to proceed.¹¹ Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981) ("limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied"). Here Congress has specified the district in which the act occurred as the "only" district, other than that where the plaintiff resides, where a claim may be brought, see 28 U.S.C. Sec. 1402(b), and thereby created a strong negative presumption against courts finding discretionary pendent venue elsewhere. Finally, consideration of judicial economy must keep in mind that Reuber has identical claims to those considered here, including an FTCA action, already pending in federal district court in Maryland, see supra at n. 8. These reasons seem to us amply to support the district court's refusal to exercise pendent venue over Reuber's FTCA claim.

The district court found that it had no personal jurisdiction over any of the individual defendants. Since none of them resides in the District, personal jurisdiction may be invoked over them only pursuant to the District of Columbia's long-arm statute. That statute provides, in relevant part:

A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by agent, as to a claim for relief arising from the person's--

....

(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;

(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, [or] engages in any other persistent course of conduct ... in the District of Columbia.

D.C.Code Ann. Sec. 13-423(a).

The district court found no personal jurisdiction under section 13-423(a)(3) because Reuber adduced no evidence of any tortious act occurring in the District.¹² Reuber contests this finding, arguing that "[i]n connection with torts such as defamation, a non-resident defendant never physically present in a state can commit an 'act' in that state when he causes a communication to be published there." He notes that many jurisdictions have held that a person commits an act in a state, for purposes of personal jurisdiction, when he sends a libel into that state. See, e.g., Buckley v. New York Post Corp., 373 F.2d 175 (2d Cir.1967); Jones v. Calder, 138 Cal.App.3d 128, 187 Cal.Rptr. 825 (1982), aff'd on other grounds, --- U.S. ----, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). He argues that these cases support a holding here that for purposes of conferring personal jurisdiction the individual defendants' revelation of the letter to a limited number of people in Maryland somehow occurred in the District because "it caused a communication [the letter] to be published there." Brief for Appellant, No. 83-1536, at 34.

However appealing to our reasoning the rationale of these cases might be, the law in this jurisdiction is otherwise. We have consistently held that libelous telephone calls into the district are not acts within the District conferring personal jurisdiction over the caller under section 13-423(a)(3). See Tavoulareas v. Comnas, 720 F.2d 192, 193-94 (D.C.Cir.1983); Margoles v. Johns, 483 F.2d 1212 (D.C.Cir.1973).

Even if our prior cases had adopted the view of the cases Reuber cites, his argument would not prevail, for it fails to distinguish between actions expressly aimed at the District, like sending a publication or letter or making a telephone call into the District, and actions which merely cause harm in the District. The language of section 13-423(a)(3) clearly requires more than an "act" that causes harm in the District; it requires that both the "act" and the injury occur in the District. Therefore, it would be playing word games with the statute to say the "act" occurs wherever the "injury" it causes takes place.

Reuber would have us construe the reach of section 13-423(a)(3) to extend to the outermost bounds allowed by due process. See Brief for Appellant, No. 83-1536, at 31. But even if the District of Columbia courts had construed this section so broadly,¹³ we do not believe it would cover the acts of the individual defendants here, since Reuber has not shown a sufficient nexus between the specific tortious conduct alleged and the District for us to conclude that "the defendant[s'] conduct and connection with the forum state [the District] are such that [they] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The record on appeal shows that the defendants disseminated the allegedly defamatory letter only to a narrow class of people in Maryland. The mere fact that this letter ultimately found its way to the Food Chemical News which published excerpts in the District, "is far too attenuated a contact to justify [the District's] exercise of in personam jurisdiction over [the defendants]." World-Wide Volkswagen, 444 U.S. at 299, 100 S.Ct. at 568.

Reuber presses two additional arguments as to why the district court had personal jurisdiction over the individual defendants under section 13-423(a)(3). First, he contends that the defendants acted as co-conspirators and therefore may be subject to personal jurisdiction based on acts of co-conspirators done within the District in furtherance of the conspiracy. See Berlin Democratic Club v. Rumsfield, 410 F.Supp. 144, 151 (D.D.C.1976); Mandelkorn v. Patrick, 359 F.Supp. 692 (D.D.C.1973). This proposition, however, is entirely inapposite to this case since Reuber has not alleged a specific tortious act in the District by any of the alleged co-conspirators.¹⁴ Thus, Reuber has not "allege[d] specific acts connecting [any of these] defendant[s] with the forum [i.e., the District]." Naartex Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C.Cir.1983) (quoting Greenspun v. Del E. Webb, Corp., 634 F.2d 1204, 1208 n. 5 (9th Cir.1980), cert. denied, --- U.S. ----, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984)).

Second, Reuber adverts to a principle from tort law used in cases where causation is uncertain--that "where each of several defendants has acted wrongfully regarding a particular individual, but the plaintiff is unable to identify which of them actually caused him harm, the burden shifts to each defendant to prove, if he can, that he is not responsible." Brief for Appellant, No. 83-1536, at 38 (citing Canterbury v. Spence, 464 F.2d 772, 796 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972); Bowman v. Redding & Co., 449 F.2d 956, 967 (D.C.Cir.1971)). Reuber argues by analogy that since it is obvious that someone leaked the letter to Food Chemical News in the District, he should not have the burden of showing who did so. The principle upon which Reuber relies, however, applies only when it can be shown that no one other than the defendants caused the harm. See Bowman, 449 F.2d at 967; Restatement (Second) of Torts, Sec. 433B(3) (1965). For this reason, even were we to accept the proffered analogy it would still not help Reuber. Here, we are by no means certain that it was one of the individual defendants who leaked the letter into the District. We thus agree with the district court that it did not have personal jurisdiction over the individual defendants under section 13-423(a)(3).

Reuber argues on appeal that, even if no act occurred in the District for purposes of section 13-423(a)(3), he was harmed in the District by defendants' acts outside it, and that the defendants have sufficient contacts with the District to subject them to the local court's jurisdiction under section 13-423(a)(4). The district court record, however, does not support this contention. Reuber's complaint makes no mention of any connection between the defendants and the District. See Complaint, paragraphs 16-44 (filed Aug. 6, 1981). His opposition to defendants' first motion to dismiss on the grounds of no personal jurisdiction merely referred to allegations in the Complaint and asked for the opportunity to take discovery regarding defendants' actions in the District. See Combined Opposition by Plaintiff to Defendants' Motions to Dismiss or Alternatively for Summary Judgment 5, 7 (filed Oct. 7, 1981) [hereinafter cited as First Opposition ]. In his opposition to defendants' second motion to dismiss, prepared after extensive discovery, Reuber's only allegation connecting the defendants to the District was that Hartwell engaged in a "substantial number" of telephone conversations with people in the District and that he received a letter from the EPA regarding a study by Reuber on the carcinogenicity of picloram. See Plaintiff's Statement of Genuine Issues in Support of Plaintiff's Combined Opposition to Defendant's Motion to Dismiss or Alternatively for Summary Judgment 13 (filed Aug. 16, 1982), reprinted in J.A. at 195 [hereinafter cited as Second Opposition ]. There is no indication in the record, however, that Hartwell's telephone contacts with or receipt of mail from the District constituted the "persistent course of conduct" section 13-423(a)(4) requires.¹⁵

In his brief, Reuber recites several contacts each individual defendant had with the District. Brief for Appellant, No. 83-1536, at 42-45. We do not consider these alleged contacts, however, since Reuber failed to raise them in the district court either in his complaint or in his opposition to defendants' motions for dismissal for lack of personal jurisdiction. Nor need we consider Reuber's contention, first made in his reply brief to this court, that he has unveiled new evidence of a conversation Hartwell had in the District concerning the Reuber controversy. See Reply Brief for Appellant, No. 83-1536, at 4-8. Even where a dismissal is based on summary judgment, so that the reviewing court must view the record in the light most favorable to the appellant, any new evidence must be presented to the district court by a motion under Federal Rule of Civil Procedure 60(b) asking that court to reopen its final judgment.¹⁶ See National Anti-Hunger Coalition v. Executive Committee of the President's Private Sector Survey on Cost Control, 711 F.2d 1071, 1075 (D.C.Cir.1983); Weisberg v. Department of Justice, 705 F.2d 1344, 1361-62 (D.C.Cir.1983).

The general rule is that the plaintiff has the burden of establishing personal jurisdiction. See Naartex, 722 F.2d at 787; De Melo v. Toche Marine, Inc., 711 F.2d 1260, 1270-71 & n. 12 (5th Cir.1983). While we recognize that Reuber's claims were dismissed without an evidentiary hearing, and therefore that a court must "resol[ve] in ... favor of [the party asserting jurisdiction] all disputes concerning relevant facts presented in the record," Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1277, 79 L.Ed.2d 682 (1984), here there is no evidence whatsoever in the record on appeal to suggest that Reuber met that burden. We thus affirm the district court's holding that Reuber failed to meet his burden of establishing the court's personal jurisdiction over the individual defendants.

The district court held, as an alternative ground for dismissing Reuber's claims against the individual defendants, that venue for these claims was improper.¹⁷ The applicable venue provision states:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose ....

28 U.S.C. Sec. 1391(b). All of the individual defendants reside in Maryland, hence venue in the District is proper only if Reuber's claims arose here.

In determining where the claim arose,¹⁸ we must pay heed to the Supreme Court's admonition that absent "the unusual case in which it is not clear that the claim arose in only one specific district," there will be only one forum in which the plaintiff may bring suit against defendants who reside in different districts. Leroy v. Great Western United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 2717, 61 L.Ed.2d 464 (1979). The appropriate forum is that which is most convenient "in terms of availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff)." Id. Assessing these factors, we agree with the district court that the "claim arose" in Maryland and not in the District:

All of the defendants reside in Maryland, as do most of the necessary witnesses. Any pertinent records are maintained at the FCRC and the NCI, both of which are located in Maryland. Finally, most, if not all, of the relevant actions comprising plaintiff's claims took place in Maryland, such as preparation of the letter, transference of the letter between individual defendants, other communications between the individaul [sic] defendants concerning disciplinary actions to be taken against Dr. Reuber and investigations of Dr. Reuber's activities.

Memorandum Opinion, slip op. at 51.

Reuber contends that, although all the defendants, most of the witnesses, and most of the evidence are in the state of Maryland, they are in fact situated closer to the District of Columbia than to the United States courthouse in Baltimore, in which the United States District Court for the District of Maryland sits. In essence he argues that since the concern of section 1391(b)--the parties' convenience--is a "pragmatic" one, see Lamont v. Haig, 590 F.2d 1124, 1133 (D.C.Cir.1978), we should ignore state boundaries in determining where the claim arose. Despite the pragmatic concerns of section 1391(b), we believe that its language--allowing suit to be brought "in the judicial district where ... the claim arose"--mandates that we take account of the boundaries between such districts. Congress clearly did not intend to enmesh the courts in the business of measuring miles from various courthouses to the defendants' residences, the witnesses' residences, and the situs of the tortious act.

Reuber cites Mundy v. Weinberger, 554 F.Supp. 811, 817-18 (D.D.C.1982), where the court held that "the geographical placement of the Pentagon across the Potomac River from the bulk of the U.S. government's principal offices [did] not deprive [that] lawsuit ... of its solid grounding in the District of Columbia." Id. at 817. We do not read Mundy as advocating any general policy of bypassing judicial district boundaries. In Mundy the controlling allegation was that while the defendants may have made their decisions at the Pentagon, those decisions were aimed at the employment status of a single individual who worked in the District. It noted that "the plaintiff's grievance and the acts that gave rise to it [were] inextricably bound up with the District of Columbia ...." Id. at 818. That is not the case here, where the plaintiff lived and worked in Maryland. We thus find Mundy does not bolster Reuber's position that venue lies in the District despite the fact that his claims are all "solidly grounded" in Maryland.

Dr. Reuber also appeals the district court's dismissal of his constitutional and pendent state law claims against Litton and Bionetics. The district court appears to have dismissed Reuber's claims against Litton and Bionetics for lack of federal subject matter jurisdiction. Reuber's complaint, however, did allege the presence of federal question jurisdiction over these claims pursuant to 28 U.S.C. Sec. 1331. A court may dismiss a complaint alleging a federal claim for lack of subject matter jurisdiction only when the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial or frivolous." Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); see also Hagans v. Lavine, 415 U.S. 528, 537-38, 94 S.Ct. 1372, 1379-80, 39 L.Ed.2d 577 (1974) (under 28 U.S.C. Sec. 1343, a claim may be dismissed for lack of subject-matter jurisdiction if it is "obviously frivolous" or if its "unsoundness so clearly results from the previous decisions ... as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.") (citations omitted).

Under this lenient standard, subject matter jurisdiction over Reuber's federal claims against Litton and Bionetics is clearly present. The complaint alleges that the corporate defendants were liable for the writing and dissemination of the letter of reprimand and the resultant "constructive discharge" of Reuber. The complaint further alleges that the individual corporate defendants were acting at the direction of, or in concert with, the individual NCI officials. Complaint, paragraphs 29-38. Finally, the complaint alleges that these actions violated Reuber's first amendment rights of freedom of association, freedom of speech, and privacy as well as his fifth amendment right to procedural due process. Id. paragraphs 55-58. Although, as we shall discuss, these claims present the question whether a constitutional tort action to recover damages against private individuals or entities exists in the circumstances here, the claims are not clearly foreclosed by controlling precedent and therefore serve as a predicate for subject matter jurisdiction. The district court, thus, erred in dismissing Reuber's constitutional claims for lack of federal subject matter jurisdiction.

The remaining question for this court is whether Reuber's complaint states a claim upon which relief can be granted. Reuber's complaint states such a claim only if a constitutional tort action for damages can be brought against private individuals or entities when it is alleged that the private parties have engaged in state action. It is to this question that we now turn.

A. Approach to Implication of Constitutional Damages Actions

The history of constitutionally based actions for money damages begins with Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Court ushered into our law the principle that citizens can bring an action to recover damages for fourth amendment violations from federal officers acting in their official capacity, notwithstanding the absence of a congressionally authorized cause of action. The Supreme Court has extended this principle to plaintiffs seeking to bring actions under the fifth amendment, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the eighth amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). This court has implied constitutional damages actions for violations of the first amendment. See Dellums v. Powell, 566 F.2d 167, 195-96 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978).

It is axiomatic that a Bivens action can be brought only against one who is engaged in governmental (or "state") action¹⁹ or, to put the matter another way, who is acting under color of federal law. The principle underlying the requirement of "state action" is that individual " 'rights secured by the Constitution are protected only against infringement by governments.' " Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982) (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978)). Thus, it is clear that in order to prevail on his Bivens claim, Reuber would have to prove that officials at NCI and officers at Litton and Bionetics conspired to discipline him because of his exercise of first amendment rights.²⁰ We, of course, cannot resolve this issue here since, given the posture of this case, we must take all of plaintiff's factual allegations as true.

While we cannot resolve the fact-bound issue of whether state action was present in this case, we can address the purely legal question presented. The legal question, simply stated, is whether constitutional tort claims for damages can be brought only against federal officials or whether Bivens, by analogy to 42 U.S.C. Sec. 1983, encompasses actions against private parties acting under color of federal law. The Supreme Court has never had occasion to address this issue. This circuit expressly left open the question whether Bivens liability might extend to private parties under certain circumstances in Zerilli v. Evening News Association, 628 F.2d 217 (D.C.Cir.1980).²¹

In Zerilli, the plaintiffs alleged that the Department of Justice had, in the course of illegal electronic surveillance, transcribed certain communications between the plaintiffs and others. Ten to fifteen years later, officials at the Department of Justice released the material to the Evening News Association. This newspaper then published that information in a series of articles entitled "Organized Crime in Detroit." Plaintiffs alleged that the officials and the newspaper had conspired to violate their fourth amendment rights and thus sued both the officials and the newspaper under a Bivens constitutional tort theory.

After dismissing the claim against the federal officials on the ground that it was identical to a claim pending in a related case in the same court, the court turned to the Bivens claim against the newspaper. The court noted that although the Supreme Court had not addressed the issue of extending Bivens liability to reach private parties acting under the color of federal law, the Court had more generally indicated that Bivens liability is inappropriate " '[when defendants demonstrate] special factors counselling hesitation....' " Zerilli, 628 F.2d at 223 (quoting Bivens, 403 U.S. at 396, 91 S.Ct. at 2004). We then relied on this general exception to Bivens liability to dispose of the Zerilli case:

Assuming without deciding that private parties may in some circumstances be held liable under Bivens for conspiring with federal officials, we believe there are three "special factors" that, taken together, preclude us from imposing such liability in the present case.

Id. (citations omitted). In other words, assuming a Bivens action did exist, the presence of special factors in the case made Bivens liability inappropriate.²²

The Zerilli approach is the approach taken by Bivens and its progeny: the presence of special factors in a particular case may render an otherwise existing Bivens -type action inappropriate. A court, however, must start its inquiry into the propriety of a damages remedy from the proposition that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Bivens, 403 U.S. at 395, 91 S.Ct. at 2004. In Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Supreme Court stated:

Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the federal official in federal court despite the absence of any statute conferring such a right. Such a cause of action may be defeated in a particular case, however, in two situations. The first is when defendants demonstrate "special factors counselling hesitation in the absence of affirmative action by Congress." The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.

Id. at 18-19, 100 S.Ct. at 1471 (emphasis in original) (citation omitted). Carlson makes it clear that in assessing any Bivens action, the court must permit such an action unless Congress has already provided an equally effective remedy to redress the constitutional wrongs or unless special factors exist which taken together make the Bivens action inappropriate.²³

Whether Reuber has a Bivens action, in the first instance, depends on whether he has alleged circumstances sufficient to characterize the corporate defendants as federal actors. Given the posture of Zerilli, it was unnecessary to address the question of state action directly. Instead, this court recognized the private status of defendants as a special factor based on the Supreme Court's observation, in the context of an unlawful search and seizure, that "[a]n agent acting--albeit unconstitutionally--in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own." 628 F.2d at 224 (quoting Bivens, 403 U.S. at 392, 91 S.Ct. at 2002).²⁴ But we must also be cognizant that there are situations where because the private action is clearly backed up by the power, property and prestige of the government, its resultant harm approaches closely or even equals that of government officials. Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961) (state may be liable for discrimination by private party where state places its power, property and prestige behind the private conduct). "[W]hen authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself." Public Utilities Commission v. Pollak, 343 U.S. 451, 462 n. 8, 72 S.Ct. 813, 820 n. 8, 96 L.Ed. 1068 (1952) (quoting American Communications Association v. Douds, 339 U.S. 382, 401, 70 S.Ct. 674, 685, 94 L.Ed. 925 (1950)). In Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court stated:

[W]e have consistently held that a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the Fourteenth Amendment.

Id. at 941, 102 S.Ct. at 2756. Clearly once state action is established, the private party is deemed a state or, in this case, a federal actor.

The defendants here are not federal officials, nevertheless, the defendants may be deemed federal actors. The defendants' private status shield is lost when they act in such a way as to create an integrated alliance with the government and their conduct therefore is imbued with the power and prestige of government officials. The facts alleged here strongly suggest this is such a case.

Taking Reuber's allegations as true, as we must at this juncture, the corporate defendants' alleged decision to punish Reuber for dissemination of his malathion study sufficiently invoked the power and prestige of the National Cancer Institute so as to make the decision a governmental one in perception as well as reality. In this case, the government--according to Reuber's allegations--had heavy thumbs on the scale with respect to the disciplining of Reuber. Reuber alleges that the decision to take disciplinary action against him was initially made by NCI officials, who used the FCRC contract to pressure Bionetics into taking action. Thus, the disciplinary action was, in every sense of the phrase, government conduct, with predictably direct ramifications on the alleged injury done to Reuber. If the decision was made by NCI, presumably Reuber would be precluded from seeking work at other NCI facilities; the federal nexus thus directly extends the harm beyond the immediate relationship of Reuber to his employer. In addition, here the corporate defendants and the government derive the mutual benefits of Bionetics' operation of FCRC. FCRC is a government-owned facility operated by Bionetics. See Brief for Appellant, No. 82-2376, at 8. Bionetics' operations at FCRC are totally financially dependent on its government contract to operate that facility. All publications generated by this facility must state that the work on which they are based was performed pursuant to Bionetics' contract with NCI. It is clear, then, that Bionetics derives the prestige of association with the federal government with respect to its work at FCRC.

Given this scenario, Reuber has alleged circumstances sufficient, if proven, to characterize the corporate defendants as federal actors and thus has stated a cause of action against these private parties under Bivens.²⁵ See Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392 (6th Cir.1975) (holding that plaintiff-scientist's complaint that he was harassed, defamed and constructively discharged for publicly expressing views contrary to those of HEW stated a cause of action against his private employer under Bivens ).26

As noted earlier, the presence of special factors in a particular case may indicate that Bivens liability is inappropriate. See supra p. 1056. The only special factor arguably relevant to the appropriateness of a Bivens remedy in the present case is the private status of the defendants. However, the private status of the defendants, even if deemed a special factor, is not alone sufficient to counsel hesitation in implying a damages remedy when the private party defendants jointly participate with the government to a sufficient extent to be characterized as federal actors for purposes of a Bivens action. Certainly, Zerilli does not suggest that the defendants' private status, standing alone, should suffice to deny plaintiffs a Bivens action.²⁷

The dissent attaches special significance to the fact that the action here involves a corporate employer taking disciplinary action against one of its employees. Neither the substance nor the merits of the defendants' allegations against Reuber included in the March 1981 letter of reprimand are pertinent to our inquiry. Nor does the mere fact that this is an employment setting counsel judicial restraint. In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court held that where a federal employee's first amendment claims were fully cognizable under an elaborate, comprehensive, remedial scheme created by Congress, it would be inappropriate to supplement that scheme with a Bivens remedy. Bush squarely addressed a question of federal personnel policy and the court deferred to Congress' interest and expertise in "balancing governmental efficiency and the rights of [government] employees...." Bush v. Lucas, 103 S.Ct. at 2417.

Reuber is making a first amendment challenge to a personnel action taken by private employers. The critical factor, as the dissent notes, is that the private employers are government contractors. It is this relationship and the joint participation of the government and the private employers in the challenged action that makes Reuber's first amendment claim cognizable in the first instance. This type of alleged collusion between government and private employers to violate an employee's constitutional rights, which allows the government to accomplish indirectly that which it cannot do directly, is hardly a factor counselling hesitation in the absence of congressional action. Reuber, unlike the plaintiff in Bush, has no other avenue open to him for pursuing his first amendment claim against the corporate defendants.

The dissent's position that Congress' failure to regulate the personnel policies of government contractors, in light of its activity in other areas of the contracting relationship, makes judicial action inappropriate is not persuasive. First, this creates a door which closes both ways: Both congressional action in the relevant area as well as inaction become sufficient to defeat a Bivens remedy. Second, the dissent offers no support for the notion that Congress' inaction is indicative of its intent to preclude a Bivens remedy under the circumstances of this case. The situation is entirely different than the one in Bush v. Lucas where Congress had directly addressed the precise issue, weighed the competing policy concerns and provided a remedial scheme. Bush v. Lucas, supra, 103 S.Ct. at 2414-15. Whereas Congress would be reasonably expected to regulate federal personnel policy, it does not follow that Congress would be expected to attempt to comprehensively regulate the personnel policies of numerous private employers in varied fields who receive government contracts to varying extents. The fact that the defendants are government contractors should not preclude the court from providing a remedy in this case.

The dissent also argues that Zerilli indicates that the defendants' first amendment rights should be considered as a special factor counselling hesitation.²⁸ The only potential way the defendants' first amendment rights can be implicated in this case is by asserting that the defendants' exercise of their right to issue a corporate communication relating to the conduct of an employee might be chilled. This seems farfetched, at best. More importantly, however, such an argument ignores the essential nature of Reuber's complaint. Reuber's constitutional complaint, in short, does not rely mainly on the publication of the reprimand letter, but rather on its issuance as a means to punish him for his own published study.²⁹ There is no question that the government and the corporate defendants, disagreeing with the conclusions or methodology of Reuber's study, were free to publicly state their position. But issuing a letter of reprimand, based on that disagreement, is quite a different matter. It is not a public statement of the defendants' position; rather it is a punitive action by an employer against an employee. If, as alleged, the government and the corporate defendants conspired to punish Reuber because they objected to the contents of his malathion study, their conduct would not only be unprotected, but would itself be prohibited by the first amendment.

On remand, the district court should inquire whether the content of Reuber's study was a factor in the government's and defendants' joint decision to penalize Reuber. If it was, the burden would then shift to the defendants to show that, even absent the improper motive, the punitive action taken against Reuber would have occurred anyway. See Mount Healthy City School Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). This approach is commended by Supreme Court precedent and such an inquiry is not likely in any way to discourage communication of the defendants' views on the results or quality of Reuber's study.

Finally, the dissent purports to rely on Supreme Court precedent for its third "special factor," the existence of an alternative defamation claim in the state courts. See dissent at 1074 (citing Bush, 103 S.Ct. 2404 and Davis, 442 U.S. at 245, 99 S.Ct. at 2277). The Supreme Court has indicated, however, that an alternative remedy may justify a court's refusal to imply a Bivens action only where "Congress meant to preempt a Bivens remedy or to create an equally effective remedy for constitutional violations." Carlson, 446 U.S. at 19, 100 S.Ct. at 1472. Carlson rejected the availability of an FTCA action as a reason to preclude a Bivens action under this test even though the FTCA provided an alternative federal action for the precise conduct attacked in the constitutional tort action before it. Furthermore, in Bush, which dismissed a money damages action under the special factors doctrine, Justice Marshall noted, "nothing ... foreclose[s] a federal employee from pursuing a Bivens remedy where his injury is not attributable to personnel actions which may be remedied under the federal statutory [civil service] scheme." Bush, 103 S.Ct. at 2418 (Marshall, J., concurring). This court later adopted Justice Marshall's position in holding that the district court must consider a civil servant's Bivens claims arising from conduct not administratively remediable by the Merit Systems Protection Board. See Bartel v. Federal Aviation Administration, 725 F.2d 1403, 1415 & n. 21 (D.C.Cir.1984); see also Williams v. I.R.S., 745 F.2d 702 at 705 (D.C.Cir.1984).

Moreover, it is clear that Reuber's defamation action should not be a special factor in this case since it is not a substitute to redress the constitutional wrongs that he alleges. The dissent seriously mischaracterizes Reuber's constitutional claims to justify its conclusion that "Reuber be directed to [the] well articulated body of [defamation] law rather than to require this court to create a novel and probably superfluous cause of action."30 See Dissent at 1074. Reuber's constitutional claims focus on neither the truth of the allegations in the letter of reprimand nor the publication of that letter, the relevant issues in any defamation action.³¹ They focus rather on whether the letter was sent in retaliation for the dissemination of his malathion study.³²

Reliance on an alternative state law action to justify dismissal of Reuber's Bivens claim may also be improper. The Supreme Court has held, in a suit against federal prison officials, that survival of a decedent-plaintiff's Bivens action cannot be governed by state law. Carlson, 446 U.S. at 23-24, 100 S.Ct. at 1474. The Court stated that to ensure adequate redress of constitutional deprivations and deterrence of future violations "[a] federal official contemplating unconstitutional conduct ... must be prepared to face the prospect of a Bivens action." Id. at 25, 100 S.Ct. at 1475. It therefore refused to allow state law standards to limit the scope of actionable wrongs under the Constitution. Nonetheless, the dissent, without mentioning Carlson, asserts that "the fact that the source of the alternative remedy is state law [does not] preclude ... us from treating it as a factor militating against the creation of a new cause of action against private parties."³³ Dissent at 1074 (emphasis in original).

In addition to seeking damages, Reuber's complaint asks the court for an injunction ordering the defendants to stop interfering with Reuber's exercise of his constitutional rights, expunge or correct false or inaccurate documents relating to Reuber, and reinstate Reuber to his former position at the Frederick Cancer Research Center. Complaint at 20-21. Federal injunctive relief traditionally is presumed available against federal actors committing constitutional violations.³⁴ This is true regardless of whether or not the plaintiff may also have a Bivens action for damages. See Bartel v. Federal Aviation Administration, 725 F.2d 1403, 1415 (D.C.Cir.1984) (remanding claims for injunctive relief based on alleged due process violation where special factors doctrine justified dismissal of damages claim). Justice Harlan, concurring in Bivens, noted that there already existed a "presumed availability of federal equitable relief against threatened invasions of constitutional interests," under Congress' general grant of subject matter jurisdiction for cases arising under the federal constitution. Bivens, 430 U.S. at 404, 91 S.Ct. at 2008 (Harlan, J., concurring). On numerous occasions prior to Bivens, the Supreme Court had permitted suits for injunctive relief brought directly under the constitution for violations of plaintiffs' constitutional rights. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570 (1912); see also Bell v. Hood, 327 U.S. 678, 684 & n. 4, 66 S.Ct. 773, 777 & n. 4, 90 L.Ed. 939 (1946). Thus, recognizing that Reuber has alleged violations of his constitutional rights, we remand his prayer for injunctive relief to the district court for decision on the merits of his claims and for appropriate equitable relief if they are proven.

The extent of equitable relief appropriate in this case is not clear at this juncture. In my opinion, the propriety of particular forms of equitable relief should be determined by the district court "according to the distinctive historical traditions of equity as an institution." Bivens, 403 U.S. at 404, 91 S.Ct. at 2009 (Harlan, J., concurring); see also Holmberg v. Armbrecht, 327 U.S. 392, 395-96, 66 S.Ct. 582, 584, 90 L.Ed. 743 (1946) (applying traditional equity test for injunctive relief from denials of federal statutory rights); Sprague v. Ticonic National Bank, 307 U.S. 161, 165-66, 59 S.Ct. 777, 779-80, 83 L.Ed. 1184 (1939) (same). Judge Starr believes that any form of injunctive relief is inappropriate. Judge Bork, however, concludes that a prohibitory injunction, reinstatement, and expungement of records are available. Consequently, on remand, equitable relief in the form of an injunction against future interference with Reuber's exercise of his constitutional rights, reinstatement, or expungement of personnel records may be granted.

In sum, we reverse the district court's dismissal of Reuber's constitutional claims against the corporate defendants for both damages and equitable relief. These claims are remanded to the district court for further proceedings consistent with this opinion.³⁵ We also reverse the district court's dismissal of Reuber's pendent state law claims. This court is generally reluctant to overturn, as an abuse of discretion, the district court's dismissal of pendent state law claims. In the present case, however, the district court dismissed the pendent state claims under the erroneous belief that there was no federal subject matter jurisdiction to hear the federal claims. Thus, in light of our disposition of the federal claims, it is necessary to remand to the district court, for further consideration, the issue of whether pendent jurisdiction lies for Reuber's state law claims.V. CONCLUSION

In conclusion, we affirm the district court's dismissal of the FTCA actions against the United States and the constitutional and common law tort claims against the individual defendants. For the reasons stated in Part IV, we reverse the district court's dismissal of the constitutional and pendent state law claims against the two corporate defendants Litton Industries, Inc., and Litton Bionetics, Inc. We remand these claims to the district court for further proceedings consistent with this opinion.

Judgment accordingly.

BORK, Circuit Judge, concurring:

I concur in Judge Wald's result and in her opinion with the exception of Part IV, addressing appellant's federal common law claims against the Litton corporate defendants. These claims are based on appellant Reuber's allegations that federal officials, in retaliation for his exercise of freedom of speech, induced his private, corporate employer to take disciplinary action against him that led to his "constructive discharge." The questions for decision are whether a Bivens action and actions for several kinds of equitable relief, including reinstatement, will lie against Reuber's employer insofar as its disciplinary actions and their alleged effects are state action. I agree with Judge Wald that both damages and equitable relief are available in this case, but reach this result on narrower grounds, and for different reasons.

Judge Starr argues that three "special factors" make it undesirable to imply a Bivens action here. These are, first, the private status of the defendants, which Judge Starr takes to imply that they do not enjoy official immunity; second, the fact that Reuber's expression of his views concerned the subject-matter of his employer's business; and, finally, the availability of a state-law defamation remedy. I agree with Judge Starr that we can consider a broad range of factors in deciding whether to imply a constitutional tort in novel circumstances. In my view, however, the first of these factors is absent here: a private person whose conduct is allegedly instigated and directed by federal officers should be treated as a federal agent. Like any other federal agent, the private person should under these circumstances be subject to Bivens liability and entitled to qualified official immunity. The remaining factors set forth by Judge Starr are not weighty enough to justify refusing to allow a Bivens action here--especially since official immunity is available.

This case falls within a subcategory of "state action" cases in which, in addition to making allegations that satisfy the state action requirement, the plaintiff alleges that the private person acted as an agent, formal or informal, of federal officers. Just as this is the strongest type of case for extending official immunity, it is the strongest for applying the Bivens doctrine. I need not and do not decide that a Bivens action should be available whenever the state action requirement is met as to a private person whose conduct, for that reason, becomes subject to constitutional constraints. But where federal officials are not only fairly responsible but primarily responsible for a constitutional violation, the scope of a Bivens action--and of official immunity--should not turn on the fortuity of whether the damage was actually done by a federal official or by a private person acting pursuant to the exertion of official power. Cf. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982) (state action doctrine requires only that "the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State").

The case-law, though sparse, clearly supports the appellees' status as ad hoc federal agents entitled to invoke official immunity as a defense. In Becker v. Philco Corp., 372 F.2d 771 (4th Cir.), cert. denied, 389 U.S. 979, 88 S.Ct. 408, 19 L.Ed.2d 473 (1967), plaintiffs sued their employer, Philco Corporation, for allegedly defaming them in a security clearance report to the federal government. Philco was required by its defense contracts to investigate possible breaches of security and report its findings to the government. The Fourth Circuit held that because the company was in effect an agency of the government, charged with maintaining secrets affecting national security, "the company and its trusted personnel were imbued with the official's character, and partake of his immunity to liability, whenever and wherever he would enjoy the absolute privilege." 372 F.2d at 774. On similar facts, district courts have reached the same conclusion in Logiurato v. Action, 490 F.Supp. 84, 91 (D.D.C.1980) (extending qualified immunity for constitutional violations to medical examiners who acted under Peace Corps direction and control), and in Blum v. Campbell, 355 F.Supp. 1220 (D.Md.1972) (housing project managers acting under the direct supervision and control of the FHA were absolutely immune from state-law defamation claims). Moreover, the district court in the present case noted its conclusion that the corporate defendants would enjoy official immunity, though it did not need to reach that question since it held there was no federal subject-matter jurisdiction as to those defendants. J.A. at 55 n. 2.

Appellant contends that these authorities are invalid after Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), in which the Supreme Court refused to extend absolute judicial immunity in a section 1983 case to a judge's private coconspirators. Dennis is easily distinguishable, however, because in that case it was alleged that the private defendants had bribed the judge to induce him to enter an injunction depriving the plaintiffs of property without due process of law. 449 U.S. at 26, 28, 101 S.Ct. at 185, 186. The private defendants were not enlisted by the state to assist in performing its functions but knowingly induced the misuse of state power. Here, by contrast, the chain of causation runs the other way: Reuber alleges that it is the federal officials who induced the corporate defendants to discipline Reuber in retaliation for speech protected against state action by the first amendment. Dennis simply means that there are some situations in which a private actor's conduct can constitute state action without simultaneously constituting the conduct of an agent of the state. This is not one of those situations.1

This analysis also explains why the Zerilli court's recognition of private status as a special factor weighing against implying a Bivens action is inapposite here. In Zerilli, the plaintiff sought to bring a Bivens action against a newspaper that had published the contents of communications by the plaintiff allegedly obtained by the federal government in violation of the fourth amendment. Although plaintiff apparently alleged a conspiracy, see 628 F.2d at 218, it is clear that only the government had the power to disclose that information to the newspaper. Thus, whatever assistance or encouragement the newspaper may have provided seems distinctly secondary to the government's actions in obtaining and later disclosing the communications. The Zerilli court's assertion that "a defendant's private status" was a special factor counselling against implication of a Bivens remedy, id. at 223-24, should be construed in light of those facts, which would have precluded the newspaper from asserting official immunity. Indeed, the Zerilli court gave as the reason for its assertion the fact that "the primary purpose of the Bivens doctrine is to remedy abuses by those who act as agents for the sovereign." Id. at 224 (emphasis added). The concept of "agency," for purposes of constitutional tort law, is broad enough to include conspiracies such as the one alleged in the present case, though not conspiracies such as the one alleged in Zerilli.

The first of the special factors on which Judge Starr relies--the defendant's status as a private party--is accordingly inapplicable here. Judge Starr suggests that the fact that Reuber's expression also was directed to the business operations of his employer and the availability of a state-law defamation remedy also counsel hesitation in allowing a Bivens action to go forward here. Once it is established that the defendants are ad hoc federal agents who are immune from damages liability so long as they acted in good faith, however, these reasons lose much of their force. To the extent that Reuber's criticisms concern his employer's business judgment and integrity, for example, the employer may be able to show that it punished Reuber in the good-faith belief that his disloyalty entitled it to do so. On the other hand, Reuber alleges that he was punished because his remarks were critical of the federal government, and that is precisely the kind of speech the first amendment was designed to protect. Nor, as Judge Wald shows, is the defamation remedy an effective substitute for those aspects of Reuber's constitutional claim that relate to his "constructive discharge." Though an employer's relations with his employees are indeed an area in which we should be slow to intrude, that consideration alone does not support denial of compensatory damages to a person aggrieved by the unconstitutional conduct of an employer acting under the direction of federal officers.

In addition to damages, Reuber has requested injunctive relief directing the corporate defendants to refrain from any future interference with his constitutional rights, to reinstate him to his former position, and to expunge any false or inaccurate records concerning him. Only the first of these requests is squarely governed by the "presumed availability of federal equitable relief against threatened invasions of constitutional interests," Bivens, 403 U.S. at 404, 91 S.Ct. at 2008 (Harlan, J., concurring) (emphasis added), on which Judge Wald relies. The request for reinstatement is a request for relief from harms already accomplished and inherently unlikely to be repeated, and the request for expungement can be viewed as both corrective of past harm and preventive of threatened future harm. Consequently, although I agree with Judge Wald that the district court has power to enjoin the corporate defendants from future interference with Reuber's constitutional rights if it finds that the prerequisites to awarding injunctive relief have been met, the case for allowing the claims for reinstatement and expungement to go forward is much closer.

Reuber's constitutional claim, if proved, entitles him to relief unless official immunity is successfully interposed as a defense2--but it does not follow that relief should be by way of reinstatement rather than damages. For, if damages are an adequate remedy at law, equitable relief such as reinstatement would not be available in federal court. E.g., O'Shea v. Littleton, 414 U.S. 488, 499, 502, 94 S.Ct. 669, 677, 679, 38 L.Ed.2d 674 (1974). Nor is it true, as Judge Wald seems to think, that this decision must be left to the district court. Of course, "in shaping equity decrees, the trial court is vested with broad discretionary power." Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1973). However, the prerequisites to the granting of equitable relief, such as the absence of an adequate remedy at law, involve an inquiry that is primarily jurisprudential rather than evidentiary. An objection to injunctive relief on grounds that there is an adequate remedy at law "does not go to the jurisdiction of the court as a federal court and may be waived and not considered if not timely raised." Petroleum Exploration, Inc. v. Public Service Commission, 304 U.S. 209, 216 n. 7, 58 S.Ct. 834, 838 n. 7, 82 L.Ed. 1294 (1938). Yet, "if it be obvious that there is an adequate remedy at law, the court acts sua sponte to preserve the courts of equity as a forum for extraordinary relief ...."3 Id. Especially in view of the unusual extent to which Reuber's constitutional claims involve non-governmental entities and interests,4 it is appropriate for us to make the determination as to the existence of an adequate remedy at law ourselves.

Given that damages are available, a compelling argument can be made that reinstatement as an equitable remedy is foreclosed, because damages are an adequate remedy as a matter of law. The loss of employment is not a loss that is inherently immeasurable or noncompensable in monetary terms--such losses are routinely measured and compensated in a variety of legal contexts. Similarly, the fact that Congress has made reinstatement available against private employers in furtherance of federal labor and employment discrimination policy, see 29 U.S.C. Sec. 160(c) (1982) (NLRB may order reinstatement as remedy for unfair labor practice); 42 U.S.C. Sec. 2000e-5(g) (1982) (court may order reinstatement as remedy for employment discrimination), suggests less that damages are inadequate to compensate victims than that reinstatement is necessary to prevent employers from "buying back" rights Congress has conferred on employees in furtherance of a broad federal policy. Furthermore, because by definition a request for reinstatement presupposes that the harm to the plaintiff has already occurred, this class of cases does not entail the risk that a too-ready application of the inadequacy prerequisite would permit a threatened violation of a constitutional right to go forward, to the irreparable detriment of the plaintiff. At least in cases such as this one, in which it is alleged that the government induced the conduct that harmed the plaintiff, there seems little hazard to enforcement of federal constitutional rights in adhering to the traditional understanding that damages are an adequate remedy for loss of employment.

These considerations gain added force when it is recalled that reinstatement is the equivalent of specific performance of a contract for personal services. The common law traditionally disfavored specific performance of such contracts precisely to avoid the friction and the social costs that may result when employer and employee are forcibly reunited in a relationship that has already failed. Reinstatement is, even today, not the ordinary remedy for breach of an employment contract at state law. See Restatement (Second) of Contracts Sec. 367 (1979).5 Indeed, "the presence of an adequate remedy at law is often given as a specific reason for denying specific performance of a contract for services, and the general rule in respect of contracts for personal services is that for breach thereof a party must avail himself of the remedy afforded at law." Am.Jur.2d Specific Performance Sec. 164 (1973). Equitable relief in the form of reinstatement, therefore, would appear to be barred in this case on the grounds that Reuber has an adequate remedy at law.

This analysis seems to me defeated, however, by the Supreme Court's decision in Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), which establishes that the presence of a damage remedy does not bar reinstatement as equitable relief in a constitutional case. In Mount Healthy, an untenured teacher alleged that the school board's refusal to renew his contract was in retaliation for his exercise of his first amendment rights. The Court held that "[e]ven though he could have been discharged for no reason whatever ... he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected freedoms." Mount Healthy, 429 U.S. at 283-84, 97 S.Ct. at 574. The general rationale for this holding, as stated in Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972), is that

even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech.

It is quite clear that this long-standing principle applies both to the states, as in Perry and Mount Healthy, and to the federal government. See, e.g., United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Cafeteria Workers v. McElroy, 367 U.S. 886, 897-98, 81 S.Ct. 1743, 1749-50, 6 L.Ed.2d 1230 (1961). It seems equally clear that when the principle is applied to "denials of public employment," Perry, 408 U.S. at 597, 92 S.Ct. at 2697, reinstatement is one of the ordinary remedies. E.g., Mount Healthy, 429 U.S. at 283-84, 97 S.Ct. at 574-75; Bueno v. City of Donna, 714 F.2d 484, 495 (5th Cir.1983) ("reinstatement is normally 'an integral part of the remedy for a discharge which contravenes the first amendment' "). The question, then, is whether the availability of reinstatement as a non-statutory remedy for constitutional denials of public employment belies the argument that damages are an adequate remedy at law.

In large part the answer to this question is supplied by the fact that damages against the government itself, absent a statutory or other waiver, are barred by sovereign immunity. See generally Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Since that is so, there is clearly no adequate remedy at law against the sovereign, and it would be strained indeed to bar reinstatement on the basis of the possible personal liability of the state or federal officials.

This reasoning, however, does not suffice to explain Mount Healthy, because the Court in that case also held that the local school board was not entitled to assert the sovereign immunity defense. 429 U.S. at 280-81, 97 S.Ct. at 572-73. The Court did not discuss the inadequacy prerequisite to equitable relief. This omission is not surprising, since the Court simply assumed, without deciding, that a cause of action could be stated directly under the fourteenth amendment and brought under general federal-question jurisdiction. 429 U.S. at 279, 97 S.Ct. at 572. The absence of any direct consideration of the proper remedies under the assumed cause of action may make Mount Healthy less than compelling precedent for abandoning the inadequacy prerequisite in fashioning relief against governmental entities that cannot assert sovereign immunity. At a minimum, however, the fact that the Court allowed the action for reinstatement to go forward on remand must mean that the availability of a damages remedy is not, standing alone, enough to bar reinstatement in a constitutional case. We, of course, are bound by that determination. Therefore, unless this case can fairly be brought outside the probable rationale for this respect of Mount Healthy, Reuber's claim for reinstatement must be remanded to the district court.

Because the Supreme Court did not articulate its rationale, some degree of speculation is necessary to resolve this problem. One explanation for this apparent exception to the inadequacy prerequisite is that an unconstitutional discharge from employment is null and void--the court in effect orders the employer to allow the employee to resume a position he never legally lost. This rationale, which employs a legal fiction akin to that announced in the sovereign immunity context in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), is as plausible when applied to a private employer who terminates an employee under circumstances in which the employer is an ad hoc federal agent as it is when applied to a federal official.

An alternative rationale for holding that damages are not adequate relief where government has unconstitutionally discharged a public employee is that government should not be allowed to "buy back" the limitations placed on its powers by the federal Constitution. That rationale, too, is applicable here, for a refusal to allow reinstatement here would allow the government to achieve the same unconstitutional result, albeit with someone else's money. The threat of damages might suffice to deter private employers from implementing the unconstitutional government decision in the first place, but that argument proves too much: the same threat might deter governmental officers from engaging in unconstitutional conduct, yet the availability of an action for damages against those officers does not bar reinstatement under Mount Healthy.

This leaves only the fact that Reuber's employer has reverted to private status for the future as a basis for distinguishing this case from Mount Healthy.6 It is true that injunctive relief would operate in the future, and hence in one sense would implicate the interests of a private employer in making its own personnel decisions. However, reinstatement is at bottom a backward-looking remedy, just as damages are; it serves to redress a wrong that has already taken place rather than to prevent a wrong that may occur in the future. Since Reuber alleges that he was constructively discharged at a time when his employer was acting as a federal agent, and since reinstatement relates back to that time, the employer's private status does not suffice to take this case outside the ambit of Mount Healthy. It follows that binding precedent requires us to hold that Reuber's claim for reinstatement is not barred by the availability of damages against his employer. But for that precedent, the analysis set out above might persuade me that no action for reinstatement would lie.

Reuber's request for expungement of his employment records must also be allowed to go forward. The power of the federal courts to direct expungement of government records gathered or maintained in violation of the first amendment is well-established. E.g., Hobson v. Wilson, 737 F.2d 1, 65 (D.C.Cir.1984); Chastain v. Kelley, 510 F.2d 1232 (D.C.Cir.1975). "[T]he correction of records is an equitable remedy designed to correct, not compensate for, the violation, and may be essential to prevent future harm as a result of the original violation." Carter v. Orleans Parish Public Schools, 725 F.2d 261, 263 n. 4 (5th Cir.1984). The district court must, however, find that there is a real and immediate threat of irreparable harm before it can allow expungement, and on these facts that means it must find a threat of continuing or future conspiracy between the federal government and the corporate defendants. It is clearly relevant to that determination that Reuber would have a constitutional tort claim for damages from any retaliatory use of his employment records. Moreover, before the court may order expungement it must balance the potential harm to the plaintiff against the importance to the employer of maintaining the records in question. See Hobson, 737 F.2d at 66. These conditions may make it difficult for Reuber to prevail on his expungement claim, but the finding as to threat of harm and the balancing of relevant interests are fact-laden determinations that must be confided to the discretion of the district court.