Carton v. Reno

• Citation: 310 F.3d 108
• Decision Date: 31 October 2002
• Docket Number: Docket No. 01-6010.
• Parties: Raymond CARTON, Plaintiff-Appellant, v. Janet RENO, Attorney General, United States Department of Justice, Doris Meissner, Director, Immigration and Naturalization Service, Steven J. Farquharson, District Director, Immigration and Naturalization Service, Irena Kipa-Daigle, Deputy District Director, Immigration and Naturalization Service, Kevin Morrissey, Section Chief, Investigations, Immigration and Naturalization Service, John P. Weiss, Officer in Charge, Immigration and Naturalization Service, Defendants, Immigration and Naturalization Service, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

310 F.3d 108

Raymond CARTON, Plaintiff-Appellant, v. Janet RENO, Attorney General, United States Department of Justice, Doris Meissner, Director, Immigration and Naturalization Service, Steven J. Farquharson, District Director, Immigration and Naturalization Service, Irena Kipa-Daigle, Deputy District Director, Immigration and Naturalization Service, Kevin Morrissey, Section Chief, Investigations, Immigration and Naturalization Service, John P. Weiss, Officer in Charge, Immigration and Naturalization Service, Defendants, Immigration and Naturalization Service, Defendant-Appellee.

Docket No. 01-6010.

United States Court of Appeals, Second Circuit.

Argued June 26, 2002.

Decided October 31, 2002.

Alexander Scheirer, Scheirer & Geller, LLC, Hamden, CT, for Plaintiff-Appellant.

William A. Collier, Assistant United States Attorney, Hartford, CT (for John A. Danaher III, United States Attorney for the District of Connecticut), for Defendant-Appellee.

Before: JACOBS, LEVAL, and KATZMANN, Circuit Judges.

Judge KATZMANN concurs in the opinion of the Court and files a separate concurrence as well.

JACOBS, Circuit Judge.

The United States Immigration and Naturalization Service (the "INS") conducted an inquiry into complaints that plaintiff Raymond Carton, an INS investigator, had used abusive tactics. Carton sued, alleging that the INS and individual defendants violated the Privacy Act of 1974, 5 U.S.C. § 552a et seq. (the "Privacy Act"), by interviewing the third-party complainants without notifying and interviewing him first.

The provision at issue states that an agency that maintains a system of records must "collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs." 5 U.S.C. § 552a(e)(2).

The district court expressed skepticism about whether Carton's federal employment qualified as a "Federal program" within the meaning of Section 552a(e)(2), but granted summary judgment on the ground that, even if the Act applies, the undisputed circumstances reveal that defendants did not violate the Act because it would have been impracticable to contact Carton before interviewing the complainants.

We affirm for substantially the reasons stated by the district court.

I

During Carton's service as an INS investigator in 1995-96, he conducted unannounced on-site inspections at the Saybrook Point Inn (the "Inn") in Old Saybrook, Connecticut. On March 21, 1996, Carton served the Inn with a notice of intent to impose a $22,120 fine.

The Inn filed a misconduct complaint with the INS that provided a detailed chronology of Carton's alleged misconduct and characterized his tactics as "terrorization," "intimidation," "capriciousness," and "misrepresentation." The complaint triggered an internal INS investigation by Agent Kevin Morrissey in May 1996. Morrissey interviewed several employees of the Inn without contacting Carton. The INS gave Carton no notice that he was under investigation.

Morrissey submitted his report of the investigation to the Deputy District Director on August 15, 1996. The report recounted complaints by several Inn employees that Carton had been abrupt, rude, unprofessional, and threatening. Morrissey made no recommendations, but the Deputy District Director gave Carton a notice of proposal to suspend him for two days without pay for "Disrespectful Conduct to a Member of the Public." The notice described the charged conduct, informed Carton that he had ten days in which to respond before any action would be taken, and informed him that he had the right to be represented.

Carton responded through counsel. On November 29, 1996, the INS advised Carton that the reviewing officer had considered all of the evidence, including Carton's response, that Carton would be suspended on December 2 and 3, and that he could contest the decision either by filing a grievance with his union or, if he believed the discipline was discriminatory, by pursuing equal employment remedies.

Carton contested the action through his union, and the parties agreed in settlement that (1) the suspension would be rescinded and Carton would receive two days of back pay; (2) a reprimand would remain in Carton's file through April 30, 1998; and (3) the arrangement "satisf[ied] any grievance that [Carton] has against the [INS] concerning this disciplinary action." On appeal, the INS suggests obliquely that Carton's lawsuit is barred by the settlement release, but it does not pursue the argument.

II

The complaint alleges that conducting the internal investigation without Carton's participation violated the Privacy Act requirement that the agency "collect information to the greatest extent practicable directly from the subject individual." 5 U.S.C. § 552a(e)(2). Carton alleges that, as a result of the violation, he was denied consideration for a promotion, and that he suffers continuing harm because the investigation report remains in his personnel file.

In December 1998, the district court issued an order dismissing Carton's complaint as against the individual defendants, because they were not proper defendants to a claim under the Privacy Act. Carton does not appeal that ruling.

Two years later, the district court granted summary judgment in favor of the INS. The court noted preliminarily that, notwithstanding rulings in at least two circuit courts, Section 552a(e)(2) seems inapplicable on its face to an internal investigation arising out of the "federal agency employer-employee" relationship:

The statute on its face does not appear to cover plaintiff's situation, i.e., an investigation by a federal agency employer, instigated by a third party complaint, that uncovered information that resulted in an adverse job action. While a job action could constitute an adverse determination about one's "rights, benefits and privileges," it strains credulity to construe the adverse determination as being "under [a] Federal program[]." Although "Federal program" is not defined under the Privacy Act, "Federal benefit program" is — and it would not be a leap of logic to surmise that the terms are interchangeable. The INS would not seem to qualify as a "program administered or funded by the Federal Government ... providing cash or in-kind assistance in the form of payments, grants, loans, or loan guarantees to individuals."

Carton v. United States Dep't of Justice, No. 98cv1282, slip op. at 3 (D.Conn. Dec. 7, 2000) (quoting 5 U.S.C. § 552a(a)(12)).

The court granted summary judgment on the ground that, even when courts have applied the Act to an agency's investigation of its employee, they "have refused to find liability ... where an agency's investigation into alleged employee misconduct made it `impracticable' to collect the information directly from the employee involved." Id. The district court held:

[I]t would have been "impracticable" for the agency to contact plaintiff prior to conducting its investigation given plaintiff's inherent ability to intimidate the witnesses.... Further, the information pertaining to the third party complaint was something only that source would know about. Inquiry of plaintiff would be fruitless as the claims of the third party and any support thereof could only be developed by investigation of the third party.

Id. at 4-5. Judgment dismissing the complaint was entered on December 19, 2000. Carton appeals.

III

This Court reviews the district court's grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In doing so, this Court is required to construe the evidence in the light most favorable to the non-moving party and to draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998). Summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The Privacy Act "regulates the collection, maintenance, use, and dissemination of information concerning individuals." Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir.2001) (quoting Hudson v. Reno, 130 F.3d 1193, 1204 (6th Cir.1997)). It "attempts to strike a balance between the government's need to collect and maintain information and the privacy interests of the persons to whom such information pertains." Id. The provision at issue is Section 552a(e)(2), which provides:

Each agency that maintains a system of records shall ... collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs.

5 U.S.C. § 552a(e)(2). Carton argues that the INS did not collect all information from him "to the greatest extent practicable" because it interviewed the third-party complainants without talking to him or informing him that an investigation was ongoing. We affirm for substantially the reasons stated by the district court.

The threshold issue identified by the district court — whether Section 552a(e)(2) applies at all to the federal employment relationship — appears to be an open question in this Circuit. Other circuits have applied this section in the context of federal employment disputes similar to the one presented here, but the question of facial applicability apparently never arose in those cases. See, e.g., Cardamone, 241 F.3d at 524 (evaluating Defense Department's investigation of its employee's management of a military base school system); Waters v. Thornburgh, 888 F.2d 870, 873 (D.C.Cir.1989) (evaluating Justice Department's investigation of the propriety of its employee's leave days). We conclude, as did the district court, that...