781 F.2d 1294 (7th Cir. 1986), 82-1136, Perry v. F.B.I.

Docket Nº:82-1136.
Citation:781 F.2d 1294
Party Name:Rixson Merle PERRY, Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants-Appellees.
Case Date:January 23, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1294

781 F.2d 1294 (7th Cir. 1986)

Rixson Merle PERRY, Plaintiff-Appellant,

v.

FEDERAL BUREAU OF INVESTIGATION, et al., Defendants-Appellees.

No. 82-1136.

United States Court of Appeals, Seventh Circuit

January 23, 1986

Argued Sept. 26, 1985.

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[Copyrighted Material Omitted]

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Berry Sullivan, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Harold J. Krent, Dept. of Justice, Washington, D.C., for defendants-appellees.

Before CUMMINGS, Chief Judge, BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, COFFEY, EASTERBROOK, and RIPPLE, Circuit Judges. [*]

HARLINGTON WOOD, Jr., Circuit Judge.

The only issue considered by the court en banc is Perry's claim that a Federal Bureau of Investigation (FBI) memorandum contained adverse and false information about him which was circulated to certain other federal law enforcement agencies to which he had applied for employment. On appeal there was also a question raised about whether the circulation was done maliciously. As a result of that memorandum Perry claims he was not hired, thereby implicating a liberty interest protected by the Fifth Amendment. The general factual background of this controversy is set forth in Part I of the original panel opinion, but will be reviewed here.

Perry sought law enforcement positions with the Bureau of Alcohol, Tobacco and Firearms (BATF), the United States Marshals Service, the Department of Agriculture, and the Internal Revenue Service. All four agencies rejected Perry's application. Perry blames the FBI primarily for those rejections. After Perry had authorized the release of information contained in police and criminal records related to him, the FBI released the information contained in its investigative report to the requesting federal law enforcement agencies. 1 Based on this alleged improper FBI action Perry sought an injunction restraining further dissemination of the FBI memorandum, amendment of the FBI memorandum, an order appointing Perry to one of the federal employment positions which allegedly he had been wrongfully denied, together with an award of back pay, costs, and attorneys' fees.

I. Facts

  1. The "Cover Letter" Issue

    The controversial FBI information about Perry was contained in a five-page memorandum which was excised before distribution to protect informants. This memorandum was not compiled for employment purposes, but was the result of an FBI criminal investigation because of allegations, which the United States Attorney declined to prosecute, that Perry had impersonated a federal officer. The memorandum states that what it contains constitutes neither recommendations nor conclusions of the FBI, and says nothing one way or the other about hiring Perry.

    In Part I of the original panel opinion the possibility is suggested that a separate letter, characterized as a "cover letter," may have accompanied the FBI memorandum to the agencies. That "cover letter" stated that the FBI report "clearly reflects Perry's unstable nature." The majority opinion states, however, that the record does not disclose if in fact this "cover letter" was actually distributed to the interested federal agencies. Moreover, Judge Marovitz in his conscientious consideration of this case in a series of memorandum opinions makes no mention of the "cover letter," but does note that the "first page" of the memorandum itself clearly sets forth the admonishment that it contains neither recommendations nor conclusions of the FBI.

    Perry now argues in a supplemental brief filed after oral argument that by including

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    the cover letter along with the five-page memorandum as an exhibit to his complaint he at least indirectly alleged its distribution by the FBI to the law enforcement agencies. Perry argues that he also "specifically averred that the FBI report was accompanied by the FBI cover letter." He did, but that is a little misleading. What he actually stated in his district court affidavit was that the five-page memorandum, prepared in the Chicago FBI office for Bureau Headquarters in Washington, was accompanied by the cover letter. There is no averment that FBI Headquarters then forwarded the cover letter to the agencies. Quite to the contrary, Perry's affidavit continually refers only to the distribution to the agencies of the "five-page" memorandum. With the cover letter it would have been six pages. It appears that the present cover letter issue on appeal was prompted only by the reference to it in the original panel opinion.

    Our own examination of the "cover letter" reveals that it did not purport to be a cover letter conveying the report to the requesting agencies. It was instead, even as Perry states in his affidavit when considered in context, an in-house memorandum from the Special Agent in Charge of the FBI's Chicago office, where the report was compiled, addressed to the Director, FBI, Washington, D.C., enclosing the report of the closed investigation of Perry. That was prior to this employment problem. That cover letter found its way into this record because the FBI made it available to Perry along with more than a hundred other FBI documents in response to Perry's request under the Privacy Act. Nothing in the record suggests that this cover letter was or even may have been distributed to the requesting agencies. The FBI, therefore, expressed no opinions to the other agencies about Perry. The FBI internally may have viewed Perry as unstable, but it kept that view to itself. In his post-argument brief Perry concedes that dissemination of the cover letter is not essential to his liberty interest claim, only the five-page memorandum itself. Therefore, we no longer consider the "cover letter" to be a factor.

  2. The FBI Memorandum

    The information that the FBI memorandum did contain undoubtedly could be expected to be of interest to any federal law enforcement agency considering Perry for employment. The memorandum advises that the FBI employed Perry when he was eighteen-years old for several months as a clerk. The first bit of outside information comes not from some unnamed informant, but from Perry's own father, Reverend Perry. Reverend Perry advised the FBI that his son 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 some covert assignment. By affidavit Perry denies that his father ever made those statements. We find no affidavit by his father, but that is immaterial. 2

    An informant told the FBI that he overheard Perry in a bar claim to be a federal officer and to have served a subpoena upon a county sheriff in connection with a federal investigation. As might be expected, the United States Attorney for the Northern District of Illinois declined prosecution under the impersonation statute, 3 but did request that Perry be interviewed and admonished. He was interviewed and vehemently denied the charge, as the memorandum reveals. It does not appear in the memorandum that Perry did any more than

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    talk about being a federal officer and having served a subpoena. The memorandum does not allege that Perry actually served any subpoena pretending to be a federal officer. To violate the statute a person must in fact act as a federal officer or obtain something of value. 18 U.S.C. Sec. 912.

    Another sample item from an informant indicates that Perry was armed and flashed a United States Marshal's badge in a bar. The United States Attorney again declined prosecution on this charge. It was only talk, as Perry did not actually use the badge. Being armed would ordinarily be a local matter.

    Another item reported that Perry, for some reason, used a red light and siren in his car to stop other vehicles and that it cost him his job on the Deerfield Police Department. Another local police agency reported that one of its officers stopped Perry while he was driving his own car. 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 memorandum 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 state police dispatcher for a few months, but resigned. An informant said Perry had a poor record with the state police.

    A police agency also reported 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 Illinois State Toll Road and would pretend to talk over a car radio. He was investigated by the state for impersonating a state trooper, but no disposition is shown. One trooper said Perry had the reputation of "being slightly odd." Perry was also hired as a dispatcher by a local police department, but for some undisclosed reason that job lasted only one night.

  3. BATF's Actions

    BATF, like the other federal agencies which considered Perry for employment, is a sophisticated federal law enforcement agency. BATF did not rely entirely on the FBI information, but conducted its own independent background investigation of Perry and then declined to hire him. The affidavit of the BATF official who decided not to hire Perry explains how that agency went about considering Perry for employment. In compliance with Executive Order 10450, a full field preemployment background investigation was initiated because the position Perry was being considered for was classified as "critical sensitive."

    While the investigation was still in progress that official had a conversation with Perry...

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