Rixson Merle PERRY, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants-Appellees.
No. 82-1136
United States Court of Appeals, Seventh Circuit
Decided April 11, 1985.
Submitted Feb. 14, 1985.
759 F.2d 1271
Gail C. Ginsberg, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendants-appellees.
Before CUMMINGS, Chief Judge, and WOOD and CUDAHY, Circuit Judges.
CUMMINGS, Chief Judge.
This case—involving an unsuccessful applicant for a series of jobs with the federal government—raises issues concerning the Fifth Amendment‘s Due Process Clause and the Privacy Act, codified in part at
I.
In 1976 Rixson Perry applied for a job as enforcement agent with the Bureau of Alcohol, Tobacco and Firearms (“BATF“). The BATF informed Perry that he was being considered for an appointment, and Perry signed a form authorizing the agency to obtain background information on him; the only part of the release pertinent to this appeal is that Perry authorized the release of information contained in “police and criminal records.” In May 1976, the FBI sent the BATF, at the latter‘s request, a five-page report on plaintiff which contained allegations of third parties that Perry had impersonated state and federal law enforcement officers on numerous occasions.1 The report contained allegations
In June the BATF withdrew the tentative offer of employment it made Perry in April. Plaintiff alleges that in 1976, 1977 and 1978 he also did not receive law enforcement jobs with three other federal agencies—the U.S. Marshals Service, the Department of Agriculture, and the Internal Revenue Service (all defendants)—because of the FBI report. In particular, the complaint alleges that Perry was denied a position with the Marshals Service solely on the basis of information received orally from the FBI, the same information that was later compiled in the FBI report. (The district court‘s opinion of January 15, 1981, fixes the date of the decision not to hire Perry as April 22, 1976, three weeks before the date of the FBI report.) Moreover, Perry alleged that after being told by an official with the Department of Agriculture that he was an excellent candidate for a position with that agency, he was not hired because of the FBI report (allegedly transmitted to the Agriculture Department by the BATF). Finally, the record contains a copy of a 1977 letter from the IRS appointing plaintiff as a criminal investigator, subject to an investigation of Perry. Three weeks later, plaintiff alleges, the job offer was withdrawn, based in part on the FBI report, which the IRS had received from the BATF.
Plaintiff contends that the FBI report is false and that its dissemination and use by the defendant agencies violated rights guaranteed him by the Constitution and the Privacy Act. For purposes of reviewing the grant of summary judgment to defendants, we must assume that the report is indeed false. Munson v. Friske, 754 F.2d 683 at 690 (7th Cir. 1985). Some of the claims presented below have dropped out. Three issues remain on appeal: (1) whether the FBI, violated
II.
To begin with, section (e)(5) applies only to records used by an agency in “making any determination” about an individual. The legislative history indicates that the word “determination” in section (e)(5) “means any decision affecting the individual which is in whole or in part based on information contained in the record and which is made by any person or any agency.” H.R.Rep. No. 1416, 93d Cong., 2d Sess. 15 (1974) (emphasis supplied).4 The FBI made no decision or determination about Perry. It merely sent a report, summarizing information provided by third parties, to the BATF, which would then decide whether to hire plaintiff. Cf. Zeller v. United States, 467 F.Supp. 487, 502 (E.D.N.Y.1979) (press release issued by agency was not used by agency in making decisions adversely affecting plaintiff).
In addition, the statute requires agencies disseminating its records to anyone other than an agency to make reasonable efforts to ensure the records’ accuracy and completeness.
In light of the statute‘s language, structure and legislative history, we interpret section (e)(5) to mean that when one federal agency sends records to another agency to be used by the latter in making a decision about someone, the responsibility for ensuring that the information is accurate, relevant, timely and complete lies with the receiving agency—the agency making the “determination” about the person in question—not the sending agency.6 Guidelines drafted by the Office of Management and Budget (“OMB“) shortly after the Privacy Act became law—guidelines still in effect today—are in accord with this interpretation. 40 Fed.Reg. 28,948, 28,964-28,965 (July 9, 1975) (Privacy Act Implementation: Guidelines and Responsibilities).7 See also Clarkson v. Internal Revenue Service, 678 F.2d 1368, 1377 (11th Cir.1982); Note, The Privacy Act of 1974: An Overview, 1976 Duke L.J. 301, 315.
III.
The Privacy Act prohibits the release of information about a person, with exceptions not relevant to this case, unless the individual consents to the disclosure in writing.
IV.
The most troublesome issue in this case is plaintiff‘s claim that the disclosure of the FBI report implicated a liberty interest protected by the Fifth Amendment. No constitutional claim would be stated if Perry alleged only that the FBI report defamed him, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405, or if he claimed only that as a result of the report he did not receive a particular government job, Cafeteria & Restaurant Workers, Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230. But Perry has alleged that the FBI is deliberately attempting to deny him employment within the federal government in a law enforcement position; the FBI, he claims, has willfully and intentionally made it impossible for him to get a federal law enforcement position and virtually impossible to obtain similar work with state or local government agencies. Plaintiff also claims that the allegations in the report are false, an essential element of his liberty interest claim. Codd v. Velger, 429 U.S. 624, 627-628, 97 S.Ct. 882, 883-884, 51 L.Ed.2d 92 (1977) (per curiam).
While most of the liberty interest cases involve individuals who have been dismissed, e.g., Codd v. Velger; Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, Munson v. Friske, 754 F.2d 683 (7th Cir.1985), the plaintiff here was never hired. In Larry v. Lawler, 605 F.2d 954 (7th Cir.1978), this Court held that a liberty interest could be implicated by the manner in which a job applicant is turned down.8 Larry applied to the Civil
Id. at 958. See also Velger v. Cawley, 525 F.2d 334, 336 (2d Cir.1975), reversed on other grounds sub nom., Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (per curiam); Doe v. United States Civil Service Comm‘n, 483 F.Supp. at 570-571.10[T]he federal government is composed of many different agencies and departments, all of which could obtain the information under various circumstances. In effect, Larry has been stigmatized throughout the entire federal government. He is deprived of the opportunity to work in any capacity for any branch of the government.
Perry‘s case is distinguishable from Larry in that Perry is not absolutely barred from federal employment, but the practical effect of the FBI report is close enough to the employment bar in Larry to convince us that Perry is entitled to the due process protections provided by the Fifth Amendment. To begin with, any federal agency considering Perry for a law enforcement job will undoubtedly check plaintiff‘s FBI files. Perhaps the allegations in the report would matter less if Perry did not want to work in law enforcement, but the Constitution protects the liberty to follow the profession of one‘s choosing. Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 755, 1 L.Ed.2d 796, Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1138 (7th Cir.1984); see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042. And in any event, the government informs us in its brief that a check of the FBI‘s investigative files is mandatory for all of the federal government‘s prospective civilian employees. Appellee‘s Brief at 22 (citing Exec. Order No. 10,450, § 3(a) (April 27, 1953) and Federal Personnel Manual, Chap. 736, subchap. 1, § 1-2e). This means that the effect on Perry is almost identical to the effect on Larry we found protected by the Due Process Clause; while Perry is not barred from all federal employment, the seriousness of the report‘s accusations makes it extremely unlikely that anyone reading the report would hire him, particularly in the law enforcement field.11 Perry,
Another factor in our decision in Larry was the length of time during which Larry was barred from all federal employment: three years. In contrast, the FBI report on Perry has been in his investigative file—and thus required to be reviewed by all prospective federal employers—for nearly nine years. The seemingly permanent existence of this report combined with the seriousness of its accusations convince us that the due process guarantees of the Fifth Amendment must come into play. The scope of the denial of employment opportunities—when viewed in terms of its practical effect—is only slightly narrower than the absolute ban in Larry, but the duration of this denial is, as of this writing, nearly three times greater.
It is true that the agencies that refused to hire Perry theoretically could have given him a job in spite of the FBI report or might not have hired him anyway.12 But a realistic appraisal of the effect of the report leads inexorably to the conclusion that a prospective employer will not hire the subject of a report containing allegations of misbehavior as serious as those present here. The allegations in the FBI report go far beyond making Perry “somewhat less attractive to some other employers,” Roth, 408 U.S. at 574 n. 13, 92 S.Ct. at 2707 n. 13, or forcing Perry “down a few notches in the professional hierarchy,” Munson v. Friske, at 693, neither of which would implicate a liberty interest. Rather, the report contains allegations of serious misconduct reflecting upon Perry‘s honesty and mental stability and indicates that he is unfit to serve as a law enforcement officer. Cf. Greene v. Finley, 749 F.2d 467, 472 (7th Cir.1984); Krause v. Small Business Administration, 502 F.Supp. 1332, 1339 (S.D.N.Y.1980). The FBI report has effectively deprived Perry of the opportunity to work for the federal government in any capacity or as a law enforcement officer anywhere. When the government refuses to hire someone because of accusations “likely to make him all but unemployable in the future ... the consequences are so nearly those of formally excluding him from his occupation that the law treats the state‘s action the same way, and insists that due process be provided.” Lawson, 725 F.2d at 1139.13 See generally Doe v. United States Dept. of Justice, 753 F.2d 1092, 1108-1112 (D.C.Cir.1985).
See also Bartel v. Federal Aviation Administration, 725 F.2d 1403, 1415 (D.C.Cir.1984) (denial of right to be considered for government employment in aviation may have effectively abridged freedom to take advantage of government employment); Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953 (D.C.Cir.1980) (due process guarantees apply when government barred contractor from virtually all government work, effectively putting contractor out of business); cf. Cleveland Board of Education v. Loudermill, — U.S. —, —, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), recognizing the severity of depriving a person of the means of livelihood).Police authorities must, therefore, exercise the greatest degree of care in dealing with probationary officers to make certain not only that their discharge decisions are just but also that their reasons are kept confidential. Here New York City admits that it grants ready access to its confidential personnel files to all governmental police agencies. In a case like the present one this could have the effect of closing the public sector to the probationary police dischargee and depriving him of employment in the largest and most desirable segment of his profession. The same result, in reality, is true in the private sector because New York City answers all inquiries for permission to see personnel files with the suggestion that inspection will be permitted with the consent of the dischargee. The dischargee is then placed “between the devil and the deep blue sea“; he loses whatever his choice. Who would employ an applicant who refused to give authorization? Who would employ one who gives authorization but whose file suggests that he made an “attempt” at suicide?14
V.
Because the FBI report contains allegations of behavior that effectively foreclose Perry‘s chances of being employed in the law enforcement field, or being employed by the federal government in any capacity, the report implicates a liberty interest within the meaning of the Fifth Amendment. Whether the FBI has deprived Perry of a liberty interest without due process is left to the district court on remand; the district court never reached the question of what process was due plaintiff since it concluded that the report did not implicate his liberty interest. We would prefer to have the District Judge‘s views on the issue before reaching the question here. Likewise, we leave to the District Judge the appropriate relief should a due process violation be found. We would, however, like to provide some guidance for the proceedings on remand.
The question of what process is due has two components in the context of this case: (1) whether the FBI has already provided Perry with sufficient opportunity to refute the allegations contained in the report (i.e., whether the government complied with due process); and, if not, (2) an opportunity for Perry to clear his name (i.e., a remedy for
Similarly, if the district court concludes that Perry‘s due process rights were violated, the court should fashion a remedy that is consistent with the principle that due process is a flexible concept whose procedural protections depend on the peculiar circumstances of each case. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484. Due process requires an opportunity to be heard at a meaningful time and in a meaningful manner, Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18, but application of that standard in a particular case depends upon consideration of three factors: the private interest affected; the risk of an erroneous deprivation; and the government‘s interest, including the financial and administrative burdens additional procedures would require. Id. at 335, 96 S.Ct. at 903; see Doe v. United States Dept. of Justice, 753 F.2d at 1112-1114; Larry v. Lawler, 605 F.2d at 959-963; see generally Krause v. Small Business Administration, 502 F.Supp. at 1339-1342; Doe v. United States Civil Service Comm‘n, 483 F.Supp. at 572-575. The district court, as fact-finder, is in a better position than this Court, on the record that now exists, to assess these factors.
We wish to emphasize that we are not holding that the FBI must provide all job applicants with an opportunity to refute allegations contained in FBI reports when the reports are transmitted to a prospective employer. Such a requirement could significantly impede the FBI‘s principal function of investigating criminal activity. Rather, a meaningful opportunity to be heard must be given only when the FBI report implicates a liberty interest. This means that cases such as the one before us will arise only when (1) the subject of the report contests the truthfulness of the information found in the report, Codd v. Velger, 429 U.S. at 627-28, 97 S.Ct. at 883-84; and (2) the report—made public or easily available to prospective employers, see Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684—contains statements falling within one of the two categories identified in Roth, 408 U.S. at 573-574, 92 S.Ct. at 2707. See supra at 1277. The paucity of reported decisions involving job applicants asserting deprivation of a liberty interest suggests to us that such cases will be few and far between.
VI.
One other issue warrants discussion. It is not clear from the briefs whether Perry is appealing the ruling on his due process claim against the FBI only or against the other defendants as well. If he is appealing the claim as to all the defendants, the judgment is affirmed as to all but the FBI. Assuming the falsity of the report, the FBI has deprived Perry of a liberty interest because it compiled the report and is in a position to disseminate it—indeed, is required to disseminate it—whenever a federal agency is considering hiring Perry. Moreover, it is conceivable that state and local law enforcement agencies as well check the FBI‘s files before hiring new personnel.17 This is not true for the other agency defendants. They have not hired Perry but they have not done anything to make it impossible, or virtually impossible, for plaintiff to work in law enforcement. The defendant agencies have refused to hire Perry for particular positions, but they have not deprived him of the opportunity to follow his chosen profession.
VII.
Accordingly, we reverse the district court with respect to plaintiff‘s due process claim against the FBI, affirm the judgment in favor of the FBI on plaintiff‘s Privacy Act claims, and affirm the judgment in favor of the remaining defendants on plaintiff‘s due process claim. The case is remanded for further proceedings consistent with this opinion.
The majority opinion is a very fair examination of all the issues. I fully concur in the affirmance of the Privacy Act issues, but I am not quite convinced on the due process issue, and therefore respectfully dissent, but only to that extent.
As the majority opinion itself points out, this case may be distinguished from Larry v. Lawler, 605 F.2d 954 (7th Cir.1976) (Wood, J., dissenting) because there is no broad and absolute ban barring Perry from all federal employment. Nevertheless, the majority considers Larry to be close enough to be controlling. I do not because the majority stressed in Larry, 605 F.2d at 958 that “It must be remembered that Larry has not merely been denied a particular position within the government; he has been totally debarred from all federal employment for up to three years.” After that three years was up, then it would also be necessary for Larry to convince the United States Civil Service Commission of his rehabilitation and fitness for appointment in a new determination.
Perry faces no absolute federal employment ban although the majority speculates that the FBI information “makes it extremely unlikely” that anyone would hire him for a federal position. Perry, however, did subsequently apply to the Commission to be placed on the list of eligible applicants for employment consideration by the various agencies and departments within the federal government, and was successful. But Perry nevertheless continues to complain about his failure to be hired by four particular federal law enforcement agencies.
Perry sought law enforcement positions with the Bureau of Alcohol, Tobacco and Firearms (BATF), United States Marshals Service (USMS), Department of Agriculture (DOA), and the Internal Revenue Service (IRS). All four agencies rejected Perry‘s application. The blame for those rejections is placed on the Federal Bureau of Investigation (FBI) which upon request from BATF, but only after Perry had authorized the release of information contained in police and criminal records, sent the requested information to BATF.
The FBI personnel background information was contained in a five-page memorandum which was excised before distribution to BATF. That memorandum clearly states, however, that what it contains constitutes neither recommendations nor conclusions of the FBI. The memorandum advises that Perry was employed for several months as a clerk by the FBI when he was 18 years old. The reason for his brief tenure is not given. The information the memorandum contains undoubtedly could be expected to be of interest to any federal law enforcement agency considering Perry for employment.
For example, the first bit of information comes not from some unnamed informant of questionable reliability, but from Perry‘s own father, Reverend Perry, who advised the FBI that his son, Perry, had told him that he had been required to carry a weapon when he was a clerk for the FBI, and that even though he was no longer employed by the FBI there was still the possibility that he would be called upon for a covert assignment. Perry‘s quarrel should be with his father. Anyone with any knowledge of the FBI must realize that its 18 year old clerks without agent training are not authorized to carry guns.
An informant whose name was excised advised the FBI that he overheard Perry in a bar claim to be a federal officer and that he had served a subpoena in a federal investigation. As might be expected, the United States Attorney for the Northern District of Illinois declined prosecution under the impersonation statute, but the United States Attorney did request that Perry be interviewed and admonished. It does not appear in the memorandum that Perry did any more than talk in a bar about being a federal officer. The report does not al-
Another sample item again from an informant indicates that Perry had flashed a United States Marshal‘s badge in a bar, and was armed. The United States Attorney likewise declined prosecution on this charge. It was only talk as no actual use was made of the badge. Being armed would ordinarily be a local matter. Another item reported Perry used a red light and siren in his car to stop other vehicles for some reason and that it cost him his job on the Deerfield Police Department. A local police agency reported that Perry while driving was stopped by one of its officers. A red light and siren were noted. No charges were filed by the officers, but the officers confiscated a blackjack and a tear gas pen with cartridges. Again the report contained Perry‘s explanation that the siren was merely a car alarm, and that he was a dispatcher for the Illinois State Police. Apparently he was a dispatcher for a few months, but resigned. It was reported by the Illinois State Police that Perry would not be eligible for rehire because of poor attitude, failure to obey orders, and allegedly receiving personal gasoline discounts for official favors as a dispatcher. It was also reported that Perry had a state trooper-style hat he wore while driving on the toll road. He was investigated by the state for impersonating a state trooper, but no disposition is shown. Perry was also hired as a dispatcher by a local police department, but for some undisclosed reason that lasted only one night.
BATF, like the other federal agencies, is a sophisticated federal law enforcement agency. BATF did not rely on the FBI information, but conducted its own independent background investigation of Perry and then declined to hire him. Most of what was contained in the FBI memorandum, even without the names of the informants except for Perry‘s father, was easily subject to verification since most of it directly involved other police agencies. Perry knew where he had worked, why employment was terminated, and when and for what he had been stopped, questioned, and admonished. The information was clearly designated not to be construed as a recommendation nor a conclusion of the FBI. The information was presented in a straightforward manner without editorial comment, and even contained several direct denials by Perry. Had the memorandum gone to some private source not capable of evaluating that type of raw information nor having the capability of checking it out, we would have a different case. Nor does the report directly accuse Perry of an act of dishonesty that might be criminal. Perry‘s own barroom talk is not sufficient. He was not, for instance, labeled as an embezzler or a thief. Nor is there anything in the report to suggest any immorality whatsoever. Those accusations are examples cited in Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972) as implicating a liberty interest. The memorandum information about Perry approaches nothing involving moral turpitude.
There is a pattern of conduct, however, which emerges in the reported items which fully justified dissemination by the FBI to serve as leads but obviously requiring further verification by any interested law enforcement agency. But putting all that impersonation conduct aside, the Illinois State Police evaluation of Perry after termination of his employment with that agency stating that Perry would not be rehired because of poor attitude, failure to obey orders, and misuse of his job for personal gain is classic employment information not within any police or criminal record category. That information alone, also easily verifiable, would justify employment rejection by a federal law enforcement agency making all the other items in the FBI memo surplusage. It is difficult to imagine that a federal law enforcement agency would hire an employee who would not be rehired for
For the FBI not to have passed on the pertinent information concerning closed investigations and investigative leads to another federal law enforcement agency contemplating hiring Perry as an agent would have been, as I see it, a dereliction. Therefore, I do not see it as a due process violation when the FBI did what was sensible and practical. There was no federal employment ban imposed on Perry by regulation. The agencies were free to make their independent choices and exercise their individual discretions. Perry was given the opportunity to dispute the information directly by letter, by phone, and in person and did so. Any additional due process requirements would constitute an unnecessary burden on federal law enforcement hiring practices. It is better for a federal law enforcement agency not to hire than to be later unpleasantly surprised by a new employee‘s unstable conduct which could have serious public safety consequences.
But, even if it is to be considered a possible due process violation, Perry‘s interviews, denials, and his use of the FBI procedures for labeling the information in the FBI file as disputed together with his pursuit of a U.S. Civil Service Commission remedy provided all the due process he deserved. Federal law enforcement positions are too critical and sensitive to make it unnecessarily difficult for one federal law enforcement agency to pass pertinent investigative leads to another federal law enforcement agency. On balance, the risk to public safety far outweighs the possibility that some potential employer might rely on the mere bits of information in the FBI file without more in rejecting an otherwise qualified applicant. The information in the file did not constitute allegations, only unverified information easily recognized by a federal law enforcement agency for no more than it was. Even a possible chilling of Perry‘s federal employment by an adverse reflection on his reputation is not an employment ban and does not amount to a deprivation of liberty. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). A mere failure to hire, considering all the circumstances of this case, does not meet the “stigma plus” standard as characterized in Colaizzi v. Walker, 542 F.2d 969 (7th Cir.1976), cert. denied, 430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977).
Therefore, in part, I respectfully dissent.
HARLINGTON WOOD, Jr.
CIRCUIT JUDGE
Notes
S.Rep. No. 1183, 93d Cong., 2d Sess. 50 (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 6916, 6965 (emphasis supplied).The standards of accuracy, completeness, and timeliness, as well as relevancy are directed to the quality of the information in an individual‘s own file. The section thus looks to a double-pronged consideration, first to the authorized needs of the agency, and second, to the scope of the administrative need for information in order to make a decision on that individual.