Mickey DOWNIE; David Wheat, Plaintiffs-Appellants, v. CITY OF MIDDLEBURG HEIGHTS, et al., Defendants, Richard P. Siegel; Thomas Schneider, Defendants-Appellees.
No. 01-3051.
United States Court of Appeals, Sixth Circuit.
Argued: June 14, 2002. Decided and Filed: Aug. 23, 2002.
301 F.3d 688
Mark B. Stern (briefed), Dana J. Martin (argued and briefed), U.S. Department of Justice, Civil Division, Appellate Section, Washingon, DC, for Defendants-Appellees.
Before: SILER and MOORE, Circuit Judges; STAFFORD, District Judge.*
OPINION
MOORE, Circuit Judge.
Plaintiff-Appellant Mickey Downie (“Downie“) appeals two orders of the district court dismissing his Bivens action against Defendants-Appellees Richard P. Siegel (“Siegel“), an agent of the United States Customs Service, and Thomas Schneider (“Schneider“), an agent of the United States Bureau of Alcohol, Tobacco, and Firearms (“ATF“). In 1998, Downie filed a complaint in federal district court against the City of Middleburg Heights, a number of state officials, and Siegel and Schneider, alleging various violations of his constitutional and statutory rights in connection with his resignation as an undercover informant for the United States Customs Service. Essentially, Downie claimed that Siegel retaliated against him for comments he made in his resignation letter by creating, maintaining, and then disseminating, to Schneider and the state officials, a “blackball” memo falsely stating that Downie was not a reliable informant.
The United States substituted itself for Siegel and Schneider, as federal employees acting in the scope of their employment, for all the claims in Downie‘s complaint except those claims alleging constitutional violations. Siegel and Schneider then moved to dismiss Downie‘s constitutional claims against them for failure to state a claim under
I. BACKGROUND
On June 17, 1998, Mickey Downie and David Wheat (“Wheat“) filed a complaint
I find it disconcerting that despite the overall success of this project, as well as my consistent referrals of documented intelligence to your office for the last six years, my identity would be compromised by you (if not for the ongoing gun case) to prosecute one more defendant for one count of trafficking counterfeit Gucci bags. For this reason I am giving serious consideration to referring the instant case to the FBI to investigate the nexus among the Ohio based violator, his brother who is an aide to a U.S. Congressman and this Congressman‘s possible contacts with one of the Florida based conspirators.
J.A. at 36 (Letter of Resignation, Ex. A to Compl.). Following his resignation, Downie claims that Siegel “began a campaign to discredit [him].” J.A. at 18 (Compl. ¶ 22).
Siegel‘s alleged campaign to discredit Downie consisted of three parts. First, Downie claims that Siegel wrote a “blackball” memo regarding Downie, which Siegel sent to the director of the Office of Domestic Operations for the U.S. Customs Service and which stated in its entirety:
In accordance with chapter 41 of the Special Agent Handbook this office recommends that Mickey Downey . . . be prohibited (blacklisted) from any further participation as a source of information for the Customs Service. This source has proven to be both undesirable and unreliable. He reneged on a promise to testify at the conclusion of an undercover investigation, refused to take direction of his control agent and other supervisory agents regarding his activities in an undercover investigation and revealed proprietary Customs information regarding a sensitive undercover investigation to other law enforcement agencies and parties unknown without the permission of the Customs Service. His actions compromised more than one investigation causing possible danger to an undercover Customs Special Agent and the dismissal of criminal charges against at least one defendant. . . . For the above reasons, it is my belief that the individual should no longer be used as an informant by the Customs Service.
J.A. at 37 (Siegel Memo, Ex. B to Compl.). Second, Downie claims that Siegel “enlisted the assistance” of Schneider, and, together, they caused Downie‘s federal firearms license to be revoked, illegally seized
On the basis of the above facts, Downie and Wheat alleged in the complaint that: (1) the defendants retaliated against them in violation of their First Amendment rights; (2) the defendants violated their rights under Ohio law; and (3) the defendants conspired to deprive them of their constitutional and state-law rights. Along with the complaint, Downie and Wheat filed a motion for a temporary restraining order and a preliminary injunction, but after a hearing on July 9, 1998, the district court denied the motion. On November 2, 1998, the United States substituted itself for defendants Siegel and Schneider pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act“), codified at
On September 30, 1999, the district issued an order granting the government‘s motion to dismiss, and granting in part Siegel‘s and Schneider‘s motion to dismiss. See Downie v. City of Middleburg Heights, 76 F.Supp.2d 794 (N.D.Ohio 1999). In regard to the government‘s motion, the district court explained that the United States can only be sued pursuant to the Federal Tort Claims Act (“FTCA“). Because Downie and Wheat did not allege in their complaint that they had exhausted their administrative remedies as required by the Act,
In regard to Siegel‘s and Schneider‘s motion to dismiss, the district court first concluded that Wheat‘s complaint against Siegel and Schneider failed to state a claim upon which relief could be granted because the complaint did not allege that Siegel and Schneider violated Wheat‘s constitutional rights. The court next concluded that Count III of the complaint, in which Downie alleged that he had been retaliated against for his “prior use of the legal sys-
On October 14, 1999, Siegel and Schneider moved for reconsideration of the district court‘s partial denial of their motion to dismiss. Siegel and Schneider argued that the Privacy Act entirely precluded Downie‘s First Amendment retaliation claims against them. On September 12, 2000, the district court issued an order granting the motion for reconsideration and amending its order of September 30, 1999 to dismiss all of Downie‘s claims against Siegel and Schneider pursuant to
II. JURISDICTION
Siegel and Schneider contend that this court lacks jurisdiction to hear Downie‘s appeal because the district court did not properly certify for appeal its dismissal of Downie‘s constitutional claims against them. We disagree. Following its dismissal of Downie‘s constitutional claims against Siegel and Schneider in two orders, the district court granted Downie‘s motion to appeal those orders pursuant to
To certify an order for immediate appeal, a district court must: (1) “expressly direct the entry of final judgment as to one or more but fewer than all the claims or parties in a case“; and (2) “express[ly] determin[e] that there is no just reason to delay appellate review.” Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th Cir.1994) (quotations omitted). Siegel and Schneider argue that in its order certifying Downie‘s immediate appeal on December 11, 2000, the district court did not “expressly direct entry of final judgment for the federal defendants.” Appellees’ Br. at 2. “Instead the court simply referred to its entry of judgment of September 12, 2000.” Appellees’ Br. at 2. According to Siegel and Schneider, this “procedural anomaly” creates a situation in which the plaintiff‘s certified notice of appeal is untimely because it was filed more than sixty days after the entry of the district court‘s September 12, 2000 order. See
We have held, however, that “[t]he first step in certification, entry of partial final judgment, is satisfied where some decision made by the district court ultimately disposes of one or more but fewer than all of the claims or parties in a multi-claim/multi-party action.” Gen. Acquisition, 23 F.3d at 1026-1027 (emphasis added). The district court need not enter the partial final judgment in its certification of an immediate appeal pursuant to
III. ANALYSIS
A. Standard of Review
This court reviews de novo a district court‘s grant of a motion to dismiss pursuant to
B. Bivens Action—Privacy Act
The district court concluded that the Privacy Act of 1974 precluded all of Downie‘s Bivens claims against Siegel and Schneider. Downie contends on appeal that the district court erred in so concluding.5 In Bivens, the Supreme Court recognized in the United States Constitution itself an implicit damages cause of action against individual federal officials for violations of constitutional rights. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); see also Jones v. TVA, 948 F.2d 258, 262 (6th Cir. 1991).
In two cases in the 1980s, the Supreme Court further delineated the two exceptions to the Bivens doctrine. In Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Supreme Court held that a NASA aerospace engineer could not bring a Bivens action against his employer for retaliatory demotion in violation of the First Amendment: “Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy.” Id. The Bush Court explained that, “[w]hen Congress provides an alternative remedy, it may, of course, indicate its intent, by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the Court‘s power should not be exercised.” Id. at 378. However, “[i]n the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed . . . to any special factors counselling hesitation before authorizing a new kind of federal litigation.” Id. The fact that Congress constructed an “elaborate remedial system” for addressing violations of federal employees’ rights—including violations of their First Amendment rights—constituted a special factor sufficient for the Court to refuse to imply a Bivens remedy. Id. at 388-89.
In Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), the Court held that individuals alleging that their social security benefits had been terminated in violation of their due process rights could not bring Bivens actions against federal social security administrators. Because a damages remedy was not “included in the elaborate remedial scheme devised by Congress,” it was unavailable. Id. at 414. According to the Court:
[T]he concept of “special factors counselling hesitation in the absence of affirmative action by Congress” has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.
Id. at 423. Although the Court conceded that “the creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed,” the Court concluded that “Congress . . . has not failed to provide meaningful safeguards or remedies for the rights of persons situated as respondents were.” Id. at 425.
In Jones, this court held that a TVA employee could not bring a Bivens action against TVA officials for violations of his First and Fifth Amendment rights. Jones, 948 F.2d at 264. We noted that “[s]ince Schweiker, courts in several instances have limited their inquiry to whether Congress has enacted a comprehensive administrative scheme governing the area involved, which indicates that
Additionally, in Fishburn v. Brown, 125 F.3d 979, 983 (6th Cir.1997), we held that a taxpayer could not bring a Bivens action against IRS agents for violations of her Fourth Amendment rights. We stated that “Congress has provided a damages remedy for the reckless or intentional disregard of Internal Revenue Code Provisions by IRS employees in collecting taxes. Furthermore, Congress unequivocally stated that [such provision] is the exclusive remedy for recovering damages resulting from such actions.” Id. at 982 (citations and quotation omitted). Although the damages provision does not mention constitutional violations, we noted that “[t]hese carefully crafted legislative remedies confirm that, in the politically sensitive realm of taxation, Congress‘s refusal to permit unrestricted damage actions by taxpayers has not been inadvertent.” Id. at 983 (quotation omitted).
The district court concluded in this case that the Privacy Act “directly addresses and regulates the conduct surrounding the ‘blackball’ memo of which Downie complains.” Downie, 76 F.Supp.2d at 802. In the district court‘s order of September 30, 1999, in which it granted in part the defendants’ motion to dismiss, the court held only that the Privacy Act precluded Downie‘s Bivens action as to the maintenance and dissemination of the memo. However, in its order of September 12, 2000, in which it granted the defendants’ motion to reconsider, the court held that the Privacy Act precluded Downie‘s Bivens action as to the creation of the memo as well. The Privacy Act provides that:
Whenever any agency . . . fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, . . . the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.
In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of—
(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recover receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees as determined by the court.
We agree with the district court that because the Privacy Act is a comprehensive legislative scheme that provides a meaningful remedy for the kind of wrong Downie alleges that he suffered, we should not imply a Bivens remedy for Downie against Siegel and Schneider directly under the First Amendment of the United States Constitution.7 Counts I, II, and XI of Downie‘s and Wheat‘s complaint allege as follows:
Count I: Plaintiffs are entitled to seek employment in their chosen profession, but have been and continue to be precluded from such employment as a direct result of the actions of the defendants and in retaliation for plaintiff Downie exercising his constitutional rights of free speech, free expression and free association, and such actions violate plaintiffs’ constitutionally protected rights guaranteed under the First and Fourteenth amendments to the U.S. Constitution.
Count II: The actions of the defendants, in maintaining false information about plaintiff Downie in both the national police computers and in the afore-mentioned “blackball memo,” constitute a violation of plaintiffs’ First Amendment rights, in that such actions were taken in retaliation for plaintiffs exercising their legitimate and protected First Amendment rights, i.e., exposing governmental corruption.
Count XI: The acts of all defendants, acting in concert with others, constitutes a conspiracy to deprive plaintiffs of their constitutionally-guaranteed civil rights.
J.A. at 25-27, 31 (Compl.). These counts allege wrongs that could be addressed under the Privacy Act.
On its face, then, Downie‘s complaint appears only to involve a wrong—the in-
Downie also contends that although the Privacy Act provides a damages remedy for the “intentional or willful” creation, maintenance, or dissemination of false records,
Finally, Downie points out that only a handful of courts have held that the Privacy Act exists as a comprehensive legislative scheme providing a meaningful remedy to prevent persons such as himself from bringing Bivens actions against individual federal officials who falsify records in retaliation for the exercise of First Amendment rights. It does appear that no circuit court has addressed this question, but, as Siegel and Schneider note, a number of district courts have addressed the question, and they have all held that the Privacy Act does prevent persons such as Downie from bringing Bivens actions against individual federal officials. See Sullivan v. U.S. Postal Serv., 944 F.Supp. 191, 195 (W.D.N.Y.1996); Williams v. Dep‘t of Veteran Affairs, 879 F.Supp. 578, 585-88 (E.D.Va.1995); Mittleman v. U.S. Treasury, 773 F.Supp. 442, 454 (D.D.C.1991); Patterson v. FBI, 705 F.Supp. 1033, 1045 n. 16 (D.N.J.1989), aff‘d, 893 F.2d 595 (3d Cir.), and cert. denied, 498 U.S. 812, 111 S.Ct. 48, 112 L.Ed.2d 24 (1990); see also Khalfani v. Sec‘y, Dep‘t of Veterans Affairs, 1999 WL 138247, at *7 (E.D.N.Y. March 10, 1999); cf. Alexander v. FBI, 971 F.Supp. 603, 610 (D.D.C.1997) (Privacy Act did not preclude Bivens action against federal officials acting outside the scope of their employment). In particular, in Mittleman, a former employee of the U.S. Treasury alleged that she had been fired in retaliation for “whistle blowing,” and that false information contained in the department‘s files involving the incident prevented her from obtaining future employment. Mittleman, 773 F.Supp. at 445-448.12
In sum, although few other federal courts have ruled on this issue, we conclude that the Privacy Act of 1974 is a comprehensive legislative scheme that pro-
C. Count III
The district court dismissed Count III of Downie‘s complaint on the ground that “[t]he Count raises a retaliation claim . . . but that claim rests on the premise that the defendants’ retaliatory actions violated Downie‘s right of access to the courts. Nowhere in the complaint, however, does Downie suggest how the defendants might have blocked his access to the courts . . . .” Downie, 76 F.Supp.2d at 802. Count III of Downie‘s complaint alleged:
The actions of the defendants, in publishing false and defamatory information about plaintiffs, constitutes [sic] a violation of plaintiffs’ First Amendment right of access to the courts, in that the actions of the defendants is [sic] in retaliation for plaintiff Downie‘s prior use of the legal system to vindicate his rights.
J.A. at 27 (Compl. ¶ 76). Downie now argues that in this count he was alleging not that the defendants prevented him from accessing the courts, but “that some of the adverse actions taken against him were in retaliation for him having asserted his legal rights through the courts.” Appellant‘s Br. at 16.
Downie‘s interpretation of Count III is plausible. However, we nonetheless conclude that the district court properly dismissed Count III. As we explained above, the only “false and defamatory” information at issue in this case are the false records that Siegel and Schneider allegedly created, maintained, and disseminated.13 Therefore, the same analysis that applied to Counts I, II, and XI of Downie‘s complaint applies to Count III; we hold that the Privacy Act, as a comprehensive legislative scheme that provides a meaningful remedy, precludes Downie‘s Bivens action against Siegel and Schneider on Count III of his complaint.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the orders of the district court dismissing Downie‘s constitutional claims against Siegel and Schneider.
STAFFORD, District Judge, specially concurring.
The majority concludes in Part II that the district court‘s certification satisfied the “express determination” and “express direction” requirements of
A.
When more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
The second sentence explains the effect of a district court‘s failure to comply with the “determination” and “direction” requirements. Indeed, in the second sentence, the drafters underscored the importance of the “determination” and “direction” requirements by providing that any court order, however designated, that does not comply with both the “determination” and “direction” requirements “shall not terminate the action as to any of the claims or parties” and shall be subject to later revision.
By including the “express determination” and “express direction” requirements, the drafters of
That a district court complies with the technical requirements of
B.
In this case, on September 12, 2000, the district court entered an order granting Siegel‘s and Schneider‘s motion to dismiss. J.A. at 39. That same date, the district court signed what is entitled a “Judgment Entry” in favor of Siegel and Schneider, and that “Judgment Entry” was entered on the docket.2 Because the court did not, at that time, expressly determine that there was no just reason to delay an appeal, the “Judgment Entry” did not “terminate the action as to any of the claims or parties, and the order or other form of decision [wa]s subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
On October 18, 2000, presumably recognizing that the district court‘s “Judgment Entry” did not terminate the action as to Siegel and Schneider and that it did not start the appeal clock running, Downie filed a
Whether or not the district court satisfied the technical requirements of
C.
Even though jurisdiction lies in this court whether or not the district court satisfied the technical requirements of
Moreover, I question the majority‘s reliance on a sentence taken from General Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026, 1027 (6th Cir.1994). In that case, this court considered whether the “judgment” certified for appeal—a judgment on the damages element, but not the liability element, of the plaintiff‘s case—ultimately disposed of a separable claim. On review, this court determined that the district court was “powerless” to certify its order regarding damages. Because the plaintiff‘s allegations concerned a single aggregate of operative facts, the circuit court found that separable claims were not present even though the plaintiff asserted three different legal theories and asked for two different types of damages. The appellate court accordingly dismissed the appeal and remanded the case to the district court for further proceedings.
The court in General Acquisition did not address the aspect of a
Here, in the context of an “express direction” issue, not in the context of separable claims issue, the majority quotes the above sentence in General Acquisition, suggesting that the “express direction” component of
Notes
In this case, for example, Downie might have wondered whether a “judgment” that was a nullity when entered could later serve as the express entry of judgment triggering the time for appeal underWhen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.