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

I. Facts

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

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

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

II. Discussion

A. Sovereign Immunity

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

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

B. Fifth Amendment Due Process Claims

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

Plaintiff argues that he was not granted the procedural rights guaranteed him under the FBI's internal disciplinary procedures because he was not given a copy of the urine test results. It appears however that he was accorded all the procedural rights he was entitled to under the agency's internal procedures. These procedures entitle an employee to notice of the charges against him and an opportunity to respond. *fn4 Plaintiff does not dispute that he was given such notice and opportunity to respond. The internal disciplinary procedures do not require the agency to furnish plaintiff with copies of the test results. Plaintiff has no valid claim that agency rules were violated. Accordingly plaintiff cannot make out a claim for violation of his Fifth Amendment property rights.

Plaintiff also has no claim for violation of his due process liberty interest. In order to make out a liberty interest claim for injury to reputation a plaintiff must show inter alia that the defendant published or otherwise disseminated false or defamatory information. See Loudermill v. Cleveland Bd. of Educ. 470 U.S. 532 105 S. Ct. 1487 1496 84 L. Ed. 2d 494 n.13 (1985); Bishop v. Wood 426 U.S. 341 348 48 L. Ed. 2d 684 96 S. Ct. 2074 (1976); Quinn v. Syracuse Model Neighborhood Corp. 613 F.2d 438 447 (2d Cir. 1980); Gentile v. Wallen 562 F.2d 193 197 (2d Cir. 1977). Although plaintiff contends that the alleged false charges stigmatized his reputation he does not claim that defendants published or disseminated any of these charges.

C. Fourth Amendment Claim

Plaintiff argues that the FBI's request for a urine sample was an unreasonable search violative of the Fourth Amendment. This argument is without merit.

Even assuming that the requirement of a urine sample constitutes a search see Shoemaker v. Handel 619 F. Supp. 1089 1098 (D.N.J. 1985); Storms v. Coughlin 600 F. Supp. 1214 1218 (S.D.N.Y. 1984) the Fourth Amendment prohibits only unreasonable searches. Security & Law Enforcement Employees v. Carey 737 F.2d 187 201 (2d Cir. 1984). "To determine reasonableness Court must balance the intrusiveness of the search on the individual's fourth amendment interests against its promotion of legitimate governmental interests." Id.; see Bell v. Wolfish 441 U.S. 520 60 L. Ed. 2d 447 99 S. Ct. 1861 (1979). Factors to consider are "the scope of the particular intrusion the manner in which it is conducted the justification for initiating it and the place in which it is conducted." Bell 441 U.S. at 559; see Security & Law Enforcement Employees 737 F.2d at 201.

Taking into consideration all these factors the FBI's request for the urine sample was not an unreasonable search. First collecting a urine sample is minimally intrusive. See United States v. Ramsey 431 U.S. 606 618 52 L. Ed. 2d 617 97 S. Ct. 1972 n.13; Shoemaker 619 F. Supp. at 1101. In addition this search was not conducted in an objectionably intrusive manner as in Storms 600 F. Supp. at 1222 where the urine sample was collected from a prisoner in view of others. The collection of a urine sample has little in common with stomach pumping or body cavities' searches (or even with the taking of a blood sample which requires the infliction of an injury albeit a small one). It is even less intrusive than a fingerprint which requires that one's fingers be smeared with black grease and pressed against a paper. A urine sample calls for nothing more than a natural function performed by everyone several times a day -- the only difference being the collection of the sample in a jar. Measured against the vital national interest of assuring that FBI agents are not involved in drugs the claim that such a search is unreasonable is a mockery.

The scope of the intrusion must also "be viewed in the context of the individual's legitimate expectation of privacy." Security & Law Enforcement Employees 737 F.2d at 201. Although plaintiff may have had a generalized expectation of privacy as to his private affairs see McDonell 612 F. Supp. At 1127 he had a diminished expectation in light of his position as an agent. See Security & Law Enforcement Employees 737 F.2d at 202; Shoemaker 619 F. Supp. at 1102 (jockeys as members of strictly regulated industry have diminished expectation of privacy). Well before this incident occurred plaintiff was advised of the FBI's strong interest in assuring that its agents' personal and professional affairs are beyond reproach. The FBI Personal Conduct Policy Memorandum dated May 15 1981 (Defendants' Exhibit E attached to Affidavit of Charles Mandigo) stated that:

In addition the FBI must be concerned with the employees' private as well as public personal conduct when such conduct does or could cause impairment of the FBI's efficiency or effectiveness. For example any conduct which could render an employee vulnerable to inducements to violate law Department of Justice or FBI rules regulations policy or the oath of office is prohibited at all times.

Finally the FBI has a compelling interest in assuring that its agents are not involved in drugs. While all private employers may have a generalized desire to know of their employees' drug use which could decrease efficiency the FBI has far more urgent and compelling needs for such information. FBI agents are privy to highly classified information. Any involvement of an FBI agent with drugs no matter how small exposes him to risks of extortion that could jeopardize the national security. Also since the FBI is charged with responsibility for enforcement of the federal drug laws illegal drug use by agents risks to corrupt and compromise the agency's discharge of those duties. Furthermore drug use by an agent could affect the success of an operation implicating important national security law enforcement objectives and could pose risk of injury to other agents working with him. Given these considerations that are vital to national security I can see no reasonable argument that the FBI committed an unreasonable search in violation of the Fourth Amendment in requesting a urine sample of an agent.

D. The FTCA 28 U.S.C. SEC. 1346(b)

The FTCA 28 U.S.C. SEC. 1346(b) constitutes a waiver of sovereign immunity for certain torts committed by federal agents. See Contemporary Mission Inc. v. United States Postal Serv. 648 F.2d 97 104-105 (2d Cir. 1981); Birnbaum v. United States 588 F.2d 319 327-28 (2d Cir. 1978). To collect damages under the FTCA a plaintiff must allege a common law tort actionable under the law of the place where the tortious act occurred. See 28 U.S.C. SEC. 1346(b); Contemporary Mission 648 F.2d at 104-05 n.9. Plaintiff claims the Government is liable for the common law tort of invasion of privacy. *fn5

New York however has never recognized the common law tort of invasion of privacy. In 1902 the New York Court of Appeals held in Roberson v. Rochester Folding Box Co. 171 N.Y. 538 556 64 N.E. 442 447 (1902) that there was no common law right of privacy in New York. Shortly thereafter the New York legislature passed an abbreviated privacy act N.Y. Civ. Rts. Law SEC.(S) 50 51 which prohibits un-consensual commercial use of an individual's name or likeness. Since the enactment of these provisions New York courts have consistently refused to recognize a cause of action for invasion of privacy beyond that provided in the Civil Rights Act. See e.g. Wojtowicz v. Delacorte Press Inc. 43 N.Y.2d 858 860 403 N.Y.S.2d 218 219 374 N.E.2d 129 (1978); Flores v. Mosler Safe Co. 7 N.Y.2d 276 280 196 N.Y.S.2d 975 977 164 N.E.2d 853 (1959); Gautier v. Pro-Football Inc. 304 N.Y. 354 358 107 N.E.2d 485 (1952); but see Doe v. Roe 42 A.D.2d 559 345 N.Y.S.2d 560 562 (1st Dept. 1972) (recognizing "expanded recognition" of invasion of privacy actions) aff'd 33 N.Y.2d 902 352 N.Y.S.2d 626 307 N.E.2d 823 (1973) cert. denied 420 U.S. 307 43 L. Ed. 2d 213 95 S. Ct. 1154 (1975).

In 1978 the Second Circuit held in Birnbaum v. United States 588 F.2d 319 (2d Cir. 1978) that private citizens seeking damages against the United States for unauthorized opening of their mail stated a cause of action under New York common law for invasion of privacy. It reasoned that Roberson was decided in and should be limited to the context of commercial misappropriation. Id. at 323. Noting that a majority of states recognize a common law right to be free from unwarranted intrusions into an individual's personal affairs Court concluded that the New York Court of Appeals would probably do likewise if presented with the appropriate case. Id. at 325. A few district courts have followed Birnbaum in predicting future decisions of New York courts. See Spock v. United States 464 F. Supp. 510 513 (S.D.N.Y. 1978) (federal government's unauthorized interception of citizen's wire and telegraph communications); Socialist Workers' Party v. Counsel General 463 F. Supp. 515 524 (S.D.N.Y. 1978) (relying on Birnbaum plaintiff association had cause of action where government infiltrated and eavesdropped on private meetings and read and copied private documents).

Since Birnbaum however the New York Court of Appeals has consistently stated that there is no common law cause of action for invasion of privacy in New York save that provided for in the New York Civil Rights Act. See e.g. Freihofer v. Hearst Corp. 65 N.Y.2d 135 490 N.Y.S.2d 735 739 480 N.E.2d 349 (1985); Stephano v. News Group Pubs. Inc. 64 N.Y.2d 174 485 N.Y.S.2d 220 223 474 N.E.2d 580 (1984); Arrington v. New York Times Co. 55 N.Y.2d 433 449 N.Y.S.2d 941 943 434 N.E.2d 1319 (1982) cert. denied 459 U.S. 1146 74 L. Ed. 2d 994 103 S. Ct. 787 (1983). Although these cases generally involved commercial misappropriation or false publication claims other New York courts have consistently refused to recognize a common law right of privacy in a variety of contexts. See e.g. Simpson v. New York City Transit Auth. 112 A.D.2d 89 491 N.Y.S.2d 645 647 (1st Dept. 1985) (disclosure of confidential information by the Transit Authority); Carpenter v. City of Plattsburgh 105 A.D.2d 295 484 N.Y.S.2d 284 286 (4th Dept. 1985) (disclosure of personnel records by the City); MacDonald v. Clinger 84 A.D.2d 482 446 N.Y.S.2d 801 803 (4th Dept. 1982) (doctor's disclosure of confidential information to patient's wife); Novel v. Beacon Operating Corp. 86 A.D.2d 602 446 N.Y.S.2d 118 119 (2d Dept. 1982) (landlord's unauthorized entry into apartment and taking of pictures therein). See also People v. Fitzgerald 101 Misc.2d 712 422 N.Y.S.2d 309 312-123 (Westchester Co. 1979) (regarding existence of parent-child privilege where Court noted that New York recognizes only a statutory and not a common law right of privacy); In re Dora P. 68 A.D.2d 719 418 N.Y.S.2d 597 603 n.2 (1st Dept. 1979). Moreover in MacDonald supra 446 N.Y.S.2d at 803 the Appellate Division specifically rejected the federal courts' prediction of New York law. Therefore it appears that the New York courts have not followed the direction predicted by Birnbaum.

Even if Birnbaum Spock and Socialist Workers' Party were persuasive authority in New York I believe it would be inappropriate to extend their reach to these facts. Those cases concerned government interference with the private communications and activities of private citizens. Here the alleged invasion of privacy consists of a minimally intrusive investigation by a federal agency entrusted with maintaining the national security of an employee in a critically sensitive post. I think it most unlikely that Court of New York would hold that the FBI had violated New York law by such acts even if New York courts recognized an actionable right of privacy. *fn6

Moreover Birnbaum and the other cases relied in part on the existence of New York criminal statutes N.Y. Penal Law Art. 250 which prohibit conduct basically identical to that engaged in by the defendants in those cases -- unauthorized wiretapping and interception of private mail. Plaintiff has cited no comparable New York authority which makes illegal the conduct at issue here.

In sum the FBI's request of its agent for a urine sample as a test of drug use cannot be seen as an unreasonable intrusion into plaintiff's privacy. The FBI has a compelling security interest in assuring that its agents who have access to highly classified information are not subject to compromise. Drug use by FBI agents would expose the national security to a high risk of breach. To the extent that these considerations require an FBI agent to choose between submitting to a urine test or having his refusal used against him this is minimally intrusive and necessary to the national security. It does not constitute a tort under either New York law or under the Constitution.