Kassel v. US Veterans Admin.

Decision Date04 February 1988
Docket NumberCiv. No. 87-217-D.
PartiesJeffrey S. KASSEL, Ph.D. v. UNITED STATES VETERANS ADMINISTRATION; Thomas Mulvey, Paul Lamberti, Robert Cisler, in their individual and official capacities; United States of America.
CourtU.S. District Court — District of New Hampshire


Robert M. Larsen, Concord, N.H., for plaintiff.

Gretchen Leah Witt, Asst. U.S. Atty., Concord, N.H., for defendants.


DEVINE, Chief Judge.

Plaintiff Jeffrey S. Kassel, Ph.D., brings this federal question action against the United States of America, the United States Veterans Administration ("VA"), and three idividual defendants, Thomas Mulvey, Paul Lamberti, and Robert Cisler, in their personal and official capacities as employees of the VA. Plaintiff alleges that the individual defendants took action, subsequent to a misquotation of plaintiff in an article in USA Today, which deprived him of federal constitutional and statutory rights and, in pendent claims, which violated his rights under New Hampshire law. Plaintiff invokes subject matter jurisdiction under the Privacy Act of 1974, 5 U.S.C. § 552a(g), the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1331, 1343, and 1346(b), and by way of the Court's pendent jurisdiction.

Two motions are before the Court. The individual defendants have moved for dismissal pursuant to Rules 12(b)(1) and 12(b)(6) of Counts III and IV, which claim, respectively, a deprivation of plaintiff's constitutional rights of privacy and free speech, and Counts V and VI, which allege, respectively, pendent state claims for invasion of privacy and defamation. Defendant United States of America has moved for dismissal of Count II (FTCA claim) under Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., or, in the alternative, for summary judgment under Rule 56, Fed.R.Civ.P.

The parties have submitted memoranda of law, accompanied by affidavits and exhibits. Because there has been ample opportunity for the parties to respond to the representations, and the Court has considered the documentary evidence, the Court disposes of the motions as motions for summary judgment. Rule 12(b), Fed.R. Civ.P.; Moody v. Town of Weymouth, 805 F.2d 30, 31 (1st Cir.1986).

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. The burden is upon the moving party to establish the lack of a genuine, material factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir. 1986), and the Court must view the record in the light most favorable to the nonmovant, according the nonmovant all beneficial inferences to be discerned from the evidence, Ismert & Assoc. v. New England Mut. Life Ins. Co., 801 F.2d 536, 537 (1st Cir.1986).

Factual Background

Plaintiff is a psychologist who has been employed by the VA since 1971 and since 1977 has worked at the VA Medical Center in Manchester, New Hampshire. Complaint ¶ 9. On April 26, 1985, USA Today misquoted remarks Dr. Kassel had made about Vietnam Veterans. The portion of the quotation at issue is:

It's amusing that vets feel they are the victims when the Vietnamese had the napalm and ... bombs dropped on them.

Id. ¶ 12.

On May 8, 1985, the VA formed a Board of Inquiry "to investigate the impact of Dr. Kassel's remarks" in the USA Today article. Plaintiff alleges that as a result of this inquiry, despite knowing he had been misquoted, the VA decided to fire him. The VA, through defendant Lambert, issued a "newsletter" dated June 7, 1985, to the press regarding Dr. Kassel's removal. Id. ¶ 11. The newsletter stated:

PROPOSED REMOVAL OF KASSEL— Dr. Jeff Kassel, clinical psychologist at the Manchester V.A. Medical Center, has received notice from Dr. Eduardo Anzola, Chief of Staff, of intent to remove him from employment. The action does not mean that a final decision has been made to remove Kassel. As a federal employee, Kassel has certain procedural rights which will allow him to contest his proposed removal. Anzola has initiated the removal action because, in his view, Kassel can no longer effectively perform his function as a Psychologist, having compromised his ability to establish a therapeutic relationship with patients.

Plaintiff alleges that on the same date defendants released confidential documents to the press from his personnel file. Id. ¶ 38.

On June 10, 1985, USA Today printed a correction of the April 26 article, which stated that the quote set forth above was only a part of the statement Dr. Kassel gave. The article went on to state:

In fact, he Dr. Kassel was quoting what he'd read in another news story, which said: `Vietnamese Vietnam Veterans think it's amusing that American Vets feel they are the victims when the Vietnamese had the Napalm and ... bombs dropped on them.'

Id. ¶ 12.

On June 12, the defendants made public a letter of proposed removal to Dr. Kassel, and on June 16, the VA, through defendant Mulvey, allegedly released to the press information from Dr. Kassel's confidential personnel file, including the fact that he had been fired previously, information which was expunged from his personnel file. Id. ¶ 40. The information released to the press was allegedly published in the Manchester Union Leader, the Boston Globe, and other print and broadcast media throughout New Hampshire. Id. ¶¶ 50, 53.

Plaintiff asserts that on June 13 and 15, after the correction appeared, defendant Cisler made defamatory statements to the press which in substance said he did not believe the correction made a difference— that the confidence and trust of the Vietnam Veteran community in Dr. Kassel had been destroyed. Id. ¶ 70. On July 17, 1985, the VA withdrew its intent to fire Dr. Kassel, the Director of the Medical Center stating that the USA Today correction "changed the content of Dr. Kassel's statement to the point that the proposed letter of removal was in error." Id.

After the intent to fire Dr. Kassel was withdrawn, plaintiff alleges that the defendants decided to transfer Dr. Kassel to the VA Medical Center in San Juan, Puerto Rico, against his will. That transfer was withdrawn; however, plaintiff alleges that on or about October 1, 1985, the defendants decided to transfer him to Bedford, Massachusetts, again against his will. Id. ¶ 14.

Individual Defendants' Motion for Summary Judgment Constitutional Claims

The individual defendants move for dismissal of Count III and IV, which allege deprivation of plaintiff's constitutional rights of privacy under the Ninth and Fourteenth Amendments to the United States Constitution and free speech under the First and Fourteenth Amendments. As grounds, defendants argue that plaintiff has failed to state valid claims and, in any event, that they are immune from liability under the doctrine of qualified immunity.

"Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The determination of whether the law was "clearly established" at the time the action occurred is a legal determination which is appropriate for summary judgment. Id. It is not sufficient for the Court to ascertain in a general sense that the right existed; the Court must determine whether an alleged right was established with sufficient particularity that a reasonable official could anticipate that his actions would violate that right. Borucki v. Ryan, 827 F.2d 836, 838 (1st Cir.1987).

Right of Privacy

In Count III, plaintiff alleges that two United States Supreme Court cases establish that defendants' dissemination of confidential information from his personnel file violated his constitutional right of privacy. Plaintiff's Objection at 10 (citing Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977).

The First Circuit recently determined that it was not clearly established in 1983 that a government official's dissemination to the press of a confidential psychiatric evaluation violated constitutionally protected privacy interests. Borucki, supra, 827 F.2d at 848. The First Circuit noted that in Whalen the Supreme Court had specifically refrained from deciding whether the right of privacy is implicated when private data collected by the Government is publicly disclosed. Id. at 842 (citing Whalen, supra, 429 U.S. at 605-06, 97 S.Ct. at 879). The First Circuit also stated that the Nixon decision's applicability to privacy determinations is only clear in a Fourth Amendment context. Id.

Because the First Circuit determined that the United States Supreme Court had not established the asserted privacy right, the court reviewed lower court decisions that had considered the issue. In deciding that the asserted right of privacy was not clearly established, the First Circuit relied on the fact that there was a split in the circuits in early 1983 as to whether the right of privacy includes a general right of nondisclosure of personnel records. Id. at 848 (comparing, e.g., J.P. v. De Santi, 653 F.2d 1080, 1089 (6th Cir.1981) with Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981)). This split in the Circuits was not reconciled by 1985, when the asserted cause of action arose in the instant case.

Based on Borucki, the Court finds that plaintiff's constitutional right of privacy in his confidential personnel records was not clearly established when the cause of action allegedly arose; therefore, summary judgment for defendants regarding Count III is granted, as they are immune from suit under the doctrine...

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7 cases
  • Kassel v. US VETERANS'ADMIN., Civ. No. 87-217-D.
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    ...810 F.2d 1411, 1435-36 (8th Cir. 1987), petition for cert. filed, 56 U.S.L.W. 3184 (Sept. 2, 1987); Kassel v. United States Veterans Admin., 682 F.Supp. 646, 652-54 (D.N.H.1988). In each of these cases, the challenged personnel action was at most a chapter 23 "prohibited personnel practice,......
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