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Case No. C-91-0358-DLJ
October 16, 1992 Decided
The Hon Justice D. Lowell Jensen

On May 4, 1992 Court granted defendant's motion for summary judgment on all existing claims and denied in part plaintiff's motion for leave to amend. The Court ordered supplemental briefing on plaintiff's motion for leave to file an amended complaint as plaintiff now asserted a fourth amendment claim arising from the alleged warrantless search of plaintiff's locker by postal inspectors. Having considered the papers submitted the applicable law and the entire record herein Court DENIES plaintiff's motion for leave to file an amended complaint for the following reasons.


Plaintiff Frank McDowell ("McDowell") is employed with the U.S. Postal Service ("Postal Service"). in October 1978 McDowell submitted an application to take the Postal Service test. He passed the test and was appointed as a Postal Service custodian on September 5 1981. In connection with his appointment McDowell submitted a second application on August 19 1981. In both applications McDowell neglected to report a 1972 drug conviction for which he served six months of probation. *fn1

McDowell's prior conviction only came to the Postal Service's attention when he was arrested on February 23 1990 for possession of base/rock cocaine for sale a violation of sec. 11351.5 of the California Health and Safety Code. The San Francisco Police Department notified the Postal Service because McDowell was wearing his work uniform at the time of the arrest. On February 26 1990 several postal inspectors interviewed McDowell about his February 23 arrest and any possible drug involvement he might have with fellow Postal Service employees. Without a warrant the postal inspectors then searched McDowell's locker and personal belongings in the basement of the Main Post Office in Burlingame and placed him on administrative leave.

On March 15, 1990 McDowell filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that the administrative leave was a form of race and reprisal discrimination taken against him because of prior EEOC complaints he had filed. On March 22, 1990 the Postal Service sent McDowell a letter formally placing him on indefinite leave for his February 23, 1990 arrest and for allegedly providing false information on his 1981 employment form by failing to acknowledge that he had been arrested and convicted in 1972.

The Postal Service reinstated McDowell on April 1 1991 after learning of his acquittal of the drug possession charges. In accordance with Article 16.6 of the contract between the Postal Service and the American Postal Workers Union ("APWU") and the Postal Service gave McDowell full back pay minus mitigation for plaintiff's non-Postal employment during the period of suspension.

Plaintiff filed an action in this Court against the Postal Service under Title VII 42 U.S.C. SEC. 2000e-5 alleging employment discrimination on the basis of race and reprisal. McDowell moved to amend his original complaint to include violations of 42 U.S.C. SEC.(s) 1981 and 1983 for the alleged violations of his first fourth and fourteenth amendment rights. Defendant moved for summary judgment on the entire complaint and Court granted summary judgment as to all the existing claims. Court denied plaintiff's motion to file an amended complaint for claims of violations of his first and fourteenth amendment rights. Court ordered the defendant to file a supplemental brief on whether plaintiff should be given leave to amend to add the proposed claim for violation of the fourth amendment. Defendant filed a motion for summary judgment on the fourth amendment claim and plaintiff responded. Court now considers whether plaintiff should be granted leave to amend to add a claim for violation of his fourth amendment rights.

On June 2 1992 plaintiff filed what appears to be a notice of appeal to the Ninth Circuit. Plaintiff purports to appeal this Court's May 4 1992 Order granting defendant's motion for summary judgment.


A. Notice of appeal.

In light of Court's pending consideration of plaintiff's motion for leave to file an amended complaint Court has not yet made a final determination as to all of plaintiff's potential claims. Thus Court's May 4 1992 Order is not appeal-able absent a final judgment. While normally a notice of appeal divests the district court of jurisdiction over an action the district court retains jurisdiction where the appeal is deficient e.g. seeks review of a non-appealable order. See SEC v. American Bd. of Trade Inc. 829 F.2d 341 344 (2d Cir. 1987) cert. denied 108 S. Ct. 2018 (1988); Rucker v. U.S. Dep't of Labor 798 F.2d 891 892 (6th Cir. 1986). Court finds that plaintiff's June 2 1992 notice of appeal is defective. Accordingly Court will strike the notice of appeal and will retain jurisdiction over this action for purposes of deciding the instant motion.

B. Motion for leave to file amended complaint.

Under Federal Rule of Civil Procedure 15(a) amendments will be freely granted unless the amendment will cause undue delay will prejudice the opposing party is made in bad faith or is futile. International Association of Machinists & Aerospace Workers v. Republic Airlines 761 F.2d 1386 1390 (9th Cir. 1985).

Plaintiff seeks leave to amend his complaint to add a claim for violation of his fourth amendment rights. He claims that the search of his locker on February 23 1990 by the postal inspectors was a violation of his fourth amendment right to be free from unreasonable searches.

The fourth amendment protects the "right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures." "Searches and seizures by government employers or supervisors of the private property of their employees are subject to the restraints of the Fourth Amendment." O'Connor v. Ortega 107 S. Ct. 1492 1496 (1987). A person's fourth amendment rights are implicated when the conduct of the government officials infringed "an expectation of privacy that society is prepared to consider reasonable." Id. at 1496 (citing United States v. Jacobsen 104 S. Ct. 1652 1656 (1984))."Public employees' expectations of privacy in their offices desks and file cabinets like similar expectations of employees in the private sectors may be reduced by virtue of actual office practices and procedures or by legitimate regulation." Id. at 1497.

In the present case there existed at the time of the search the "Agreement between the United States Postal Service and the American Postal workers Union AFL-CIO National Association of Letter Carriers AFL-CIO" ("Agreement"). Under the Agreement:

the Employer agrees that except in matters where there is reasonable cause to suspect criminal activity a steward or the employee shall be given the opportunity to be present at any inspection of employees' lockers. For a general inspection where the employees have had prior notification of at least a week the above is not applicable.

Article 38.6.A.6.a Section 7. Special Provisions B. (Inspection of Lockers).

Furthermore there is a Postal Service Form 4943 that postal employees sign when they are assigned a locker. The Form states inter alia that in the assignment of the locker the undersigned understands that:

2. Locker must be clean and presentable and is only for official use. A personal lock is not permitted.

3. Disciplinary action may be taken for noncompliance.

4. Locker is subject to inspection at any time by authorized personnel.

Postal Service Form 4943 reprinted in American Postal Workers Union v. U.S.

Postal Service 671 F. Supp. 497 499 (S.D. Ohio 1987). (emphasis added).

Plaintiff states in his Declaration filed June 8 1992 that "the only agreement plaintiff or the rest of the employee's in the Burlingame area ever heard is the APWU or NALC Agreement between the United States Postal Service and the American Postal Workers Union AFL-CIO." Plaintiff further claims that he never signed Postal Service Form 4943 and that he had a personal lock on his locker. Defendant admits that the Postal Service has no record of plaintiff's having signed a Postal Service Form 4943.

The Ninth Circuit held in a case similar to the one at bar that a postal employee who is aware of a regulation subjecting her locker to inspection and chooses to use the locker has effectively relinquished her fourth amendment rights in the locker. United States v. Bunkers 521 F.2d 1217 1221 (9th Cir. 1975).In Bunkers the defendant who had been suspected of being involved with thefts at the post office was observed carrying a C.O.D. parcel to her locker by postal inspectors. The postal inspectors then conducted a search of the locker without a search warrant finding several packages in the locker.

Bunkers claimed that the search of her locker without a search warrant violated her fourth amendment rights. The Ninth Circuit disagreed finding that Bunkers did not have a reasonable expectation of privacy in the locker and that:

her voluntary entrance into postal service employment and her acceptance and the use of the locker subject to the regulatory leave of inspection and search and the labor union's contractual rights of search upon reasonable suspicion of criminal activity amount to an effective relinquishment of Bunkers' Fourth Amendment immunity in her work connected use of the locker.

Id. at 1221. The regulation in effect at the time contained the identical language as in the current Agreement between the Postal Service and APWU regarding the inspection of lockers.

In the present case plaintiff admits knowing of the Agreement and using the locker. Plaintiff cannot claim a reasonable expectation of privacy since he knew from the Agreement that the locker was subject to search by postal inspectors. Furthermore even though plaintiff did not sign Postal Service Form 4943 and he had a personal lock on his locker that does not change the fact that he was aware of the Postal Service's right to search plaintiff's locker.

Plaintiff claims in his declaration that the Postal Service had never searched his locker in the previous nine years of his employment that he did not know of any employees who had signed Form 4923 and that other employees had personal locks on their lockers. The failure of the Postal Service to search lockers in the past does not negate the express provisions of the contract between the Service and the APWU. American Postal 671 F. Supp. at 561. Similarly whether other employees had signed Form 4943 or had personal locks on their lockers does not amend or suspend the provision in the Agreement allowing for searches by the Postal Service. Furthermore the knowledge and conduct of those other employees is not at issue only the plaintiff's knowledge and conduct is relevant.

Accordingly since plaintiff had knowledge of the Agreement when he accepted the locker he has relinquished any reasonable expectation of privacy in the locker and cannot raise a Fourth Amendment claim. However if the search was performed in violation of the Agreement then plaintiff might have a claim.

According to Article 38.6.A.6.a of the Agreement there can be two types of searches; general searches and searches based on reasonable cause to suspect criminal activity. There are two forms of general searches (1) a search that has to be conducted with either the steward or the employee present; and (2) a search that does not require the presence of either the steward or the employee as long as a week's notification is given to the employee. The search that was conducted of plaintiff's locker could be characterized by the defendant as either a criminal search based on reasonable cause or a general search with the steward and the plaintiff present.

Plaintiff claims in his declaration that the search could not have been criminal because defendant did not have reasonable cause to believe that contraband might be found in the locker. McDowell claims that defendant lacked reasonable cause because a police officer and not the district Counsel's office had told defendant about plaintiff's arrest defendant had never searched plaintiff's locker in his nine years of employment and that plaintiff had a good work record with no mention of drug use.

Court rejects plaintiff's argument that defendant lacked reasonable cause. Plaintiff submits no authority supporting his position that the defendant's reliance on a police officer's statements as opposed to a district Counsel's statements is unreasonable. Furthermore the fact that plaintiff had a solid work record with no mention of drug use and that his locker had never been searched is not relevant here.

Plaintiff had been arrested for a felony and the police called the Postal Service to report the incident. The postal authorities exercised their contractual right to search plaintiff's locker. Based on the fact that plaintiff had been arrested for possessing rock cocaine defendant had reasonable cause to suspect that contraband might be present in plaintiff's locker. Defendant conducted a valid criminal search under the Agreement.

The defendant's search could also be substantiated as a valid general search of plaintiff's locker as both the shop steward and the plaintiff were present at the time of the search. As either a criminal or general search the search conducted by defendant was in accord with the Agreement and plaintiff has no claim against the defendant under the current facts.

Accordingly Court will deny plaintiff's motion for leave to file an amended complaint for the claim of violation of his fourth amendment rights. Under the current facts plaintiff's claim would be futile since there was no violation of his fourth amendment rights. Since the plaintiff had knowledge of the Agreement he did not have a reasonable expectation of privacy in the locker. Furthermore the search was properly conducted in accordance with the Agreement. Thus if Court were to allow plaintiff to amend his complaint to add a fourth amendment claim the claim would not survive summary judgment analysis as the facts demonstrate that there was no fourth amendment violation.


Therefore Court hereby ORDERS as follows:

1. That plaintiff's June 2 1992 appeal to the Ninth Circuit is defective and this Court retains jurisdiction over the motion.

2. That plaintiff's motion for leave to amend is hereby DENIED.

D. Lowell Jensen

United States District Court

For the reasons set forth in the Orders filed on May 4 1992 and October 16 1992 respectively the Court hereby ENTERS JUDGMENT against plaintiff Frank McDowell and in favor of defendant Anthony M. Frank.

Parties to bear their own costs.


D. Lowell Jensen

United States District Court


*fn1 At a May 22 1990 unemployment insurance appeals hearing McDowell argued that he simply forgot about his conviction. He also stated that it was his belief that he had no duty to report it because the papers and records affecting it were destroyed pursuant to the Government Code. See Plaintiff's Opposition.