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December 28, 1992

JOHN DOE, M.D., by CURTIS LAVERY, Executor of his Estate, Plaintiff,


The opinion of the court was delivered by: CHARLES A. LEGGE

Findings of Fact

 1. This case was tried to the court, sitting without a jury, between May 9 and May 17, 1989. The complaint asserts two claims. The first is under 29 U.S.C. § 794, the Rehabilitation Act of 1973, § 504 (the "Act"). *fn1" The second claim is that defendants used private information about plaintiff in violation of his privacy rights under the Due Process Clause of the Fifth Amendment to the United States Constitution.

 2. This court issued findings of fact and conclusions of law on August 25, 1989. It determined that plaintiff did not have a private right of action against defendants under Section 504. This court made no other findings or conclusions regarding the Section 504 cause of action. With respect to plaintiff's claim under the Fifth Amendment, the court found that defendants did not violate his right to privacy.

 3. This court's decisions were vacated in part, reversed in part, affirmed in part, and remanded by the Ninth circuit court of Appeals; Doe v. Attorney General, 941 F.2d 780 (9th cir. 1991). The Ninth circuit held that plaintiff's claim for injunctive relief, the only claim plaintiff made under his Fifth Amendment cause of action, had become moot. It affirmed this court's judgment in favor of defendant Held. The court also held that congress had waived sovereign immunity and had provided a private right of action for damages for discrimination claims against the United States under Section 504. It therefore reversed this court's contrary conclusion and remanded for this court to make findings on the merits.

 4. As a result of the Ninth Circuit's decisions, the only cause of action remaining before this court is plaintiff's claim for damages under Section 504 against the United States.

 5. The parties stipulated to submit the issues to this court for decision on the record of the 1989 trial, together with additional filings. This court has reviewed the trial record, the submissions of the parties, the arguments of counsel and the applicable authorities. The court now makes these findings of fact and conclusions of law. The facts are found by a measure of a preponderance of the evidence.

 6. Plaintiff died after the 1989 trial, and the executor of his estate has been submitted as the party plaintiff. However, Dr. Doe will be called "plaintiff," herein. Plaintiff was a medical doctor. He was engaged in the private practice of medicine as a doctor employed by, and the director of, a health care facility. The health care facility was controlled by a hospital. *fn2" Plaintiff received a salary from the facility, and his earnings were in part based upon the earnings of the facility from the patients whom plaintiff treated.

 7. The Federal Bureau of Investigation requires that physical examinations, which include anal, vaginal and oral cavity examinations, be performed on all special agents and agent applicants, under the authority of 5 C.F.R. § 339.301. From approximately December 1984 to August 1988, defendants sent all persons who were applicants for employment by the F.B.I. to the facility for pre-employment physical examinations, and they sent all employees of the Bureau to the facility for annual and promotion physical examinations. Virtually all of those physical examinations were conducted by plaintiff. Prior to August 1988, no one connected with defendants was dissatisfied with the services performed by plaintiff.

 8. Plaintiff contracted Acquired Immune Deficiency Syndrome. On or about August 15, 1988, an unknown person advised defendants that plaintiff had Kaposi's Sarcoma, a contagious AIDS-related illness.

 9. FBI Special Agent William Young met with the Director of the facility, Norma Crans, on August 16, 1988. He told her that unsubstantiated information had come to his attention that plaintiff had Kaposi's Sarcoma. He told her that the FBI was concerned about the health risk, if any, to its agents and applicants. He also informed her that the FBI was concerned about the agents not having this information when they were getting there physical examinations. Agent Young said that this was a health related issue because it related to an examining physician having an alleged communicable disease examining the FBI agents and applicants. Ms. Crans told Agent Young that it would be essential that he meet with plaintiff and that she was not in a position to resolve the matter.

 10. Agent Young met with plaintiff on August 23, 1988. Agent Young stated that unsubstantiated information had come to the attention of the FBI that a member of the staff of the facility had a communicable disease. Plaintiff asked what the disease was. Agent Young told plaintiff that it was Kaposi's Sarcoma. Plaintiff stated that he believed this information constituted a breach of medical ethics. Agent Young responded that the information had come to the attention of the F.B.I., and they were concerned about the health risk to their agents and applicants. Plaintiff did not confirm or deny the information that someone on the staff had a communicable disease; however, he said that there was no medical risk.

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