Lapin v. Taylor

• Citation: 475 F. Supp. 446
• Decision Date: 31 July 1979
• Docket Number: Civ. No. 78-0337.
• Parties: Jake LAPIN, Plaintiff, v. Jeffrey M. TAYLOR, Defendant.
• Court: U.S. District Court — District of Hawaii

475 F. Supp. 446

Jake LAPIN, Plaintiff, v. Jeffrey M. TAYLOR, Defendant.

Civ. No. 78-0337.

United States District Court, D. Hawaii.

July 31, 1979.

Jake Lapin, pro se.

William H. Dodd, Stephen T. Robinson, Honolulu, Hawaii, for defendant.

ORDER MODIFYING ORDER OF DISMISSAL AND GRANTING LEAVE TO AMEND COMPLAINT

SAMUEL P. KING, District Judge.

On September 5, 1978, plaintiff Jake Lapin, a citizen of Hawaii, filed this lawsuit against Jeffrey M. Taylor, Esq., a local attorney who represented a brokerage firm, Wedbush, Noble, Cooke, Inc., and one of its investment executives, Gregory F. Kowal, in another lawsuit brought by Lapin in this Court (Civil No. 77-0421). In the instant case, plaintiff alleges that, during the course of defendant's representation of his clients in Civil No. 77-0421, defendant Taylor, inter alia, removed from the plaintiff's Department of Labor medical file at least 20 confidential documents that are privileged under the Privacy Act. 5 U.S.C. §§ 552 and 552a.¹ Plaintiff alleges that this removal of the documents was accomplished under false pretenses and by perpetrating a fraud upon this Court and that these documents were to be used to attack the reputation, character and credibility of the plaintiff.² The complaint contends that the alleged acts of defendant violated plaintiff's civil rights contrary to the Civil Rights Acts, 42 U.S.C. §§ 1981-1995, and that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, and 1343.

On March 19, 1979, defendant filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on the grounds that: (1) the complaint filed herein fails to state a claim against defendant upon which relief can be granted; and (2) this Court lacks subject matter jurisdiction over the complaint filed herein. On May 25, 1979, plaintiff filed a memorandum in opposition to defendant's motion. Plaintiff argued that his complaint includes claims under the Privacy Act, 5 U.S.C. § 552a(i)(3), and the Civil Rights Act of 1861, 42 U.S.C. §§ 1985 and 1986, and that this Court has jurisdiction pursuant to 5 U.S.C. §§ 552a(i)(3) and 7102, 28 U.S.C. §§ 1331 and 1343, and the common law of torts. A hearing was held on June 4, 1979.

On June 5, 1979, an Order of Dismissal was filed which held that plaintiff had failed to state a federal claim pursuant to either the Privacy Act or the Civil Rights Act of 1861. It was therefore ordered that plaintiff's action be dismissed with prejudice as to the federal claims and without prejudice as to the pendent state claims.³

On June 12, plaintiff filed a Motion for Reconsideration of the Order of Dismissal in light of two recent Ninth Circuit cases that elucidate the requirements of a § 1985(3) claim: Life Insurance Company of North America v. Reichardt, 591 F.2d 499 (9th Cir. 1979) and DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327 (9th Cir. 1979). Because neither of these cases had been raised nor argued by either side at the June 4 hearing, I requested that each party brief these cases. A second hearing was held on July 20. In light of the teaching of these cases, I conclude that plaintiff can state a federal cause of action under § 1985(3).

Plaintiff first alleges that he raises claims under 5 U.S.C. § 552a(i)(3) over which this Court has jurisdiction pursuant to 5 U.S.C. § 552a and 28 U.S.C. § 1331. This statute provides that: "any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000." This argument is unpersuasive. I conclude that this section of the Privacy Act is solely a penal provision and creates no private right of action. Rowe v. Tennessee, 431 F.Supp. 1257, 1264 (E.D.Tenn.1977); see Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); cf. Lopez v. Arrowhead Ranches, 523 F.2d 924, 926 (9th Cir. 1975) (a similar section of the Immigration and Nationality Act, 8 U.S.C. § 1324, was held to be solely a penal provision that creates no private right of action).⁴

Plaintiff next contends that his complaint states a cause of action pursuant to 42 U.S.C. §§ 1985 and 1986. An examination of these provisions indicates that § 1985(3) is the only one which plaintiff's complaint could conceivably satisfy.

In order to state a claim under § 1985(3) a complaint must allege that the defendants did (1) "conspire or go in disguise on the highway or on the premises of another" (2) "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." It must then assert that one or more of the conspirators (3) did, or caused to be done, "any act in furtherance of the object of the conspiracy," whereby another was (4a) "injured in his person or property" or (4b) "deprived of having and exercising any right or privilege of a citizen of the United States."

Griffin v. Breckinridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-1799, 29 L.Ed.2d 338 (1971). The Griffin Court concluded that the statute was meant to cover private conspiracies but it was not "intended to apply to all tortious, conspiratorial interferences with the rights of others." Id. at 101, 91 S.Ct. at 1798. Consequently, the Court interpreted the second element of the cause of action in a way that would give full effect to the congressional purpose.

The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.

Id. at 102, 91 S.Ct. at 1798 (footnotes omitted).

The Griffin Court did not explain what might be considered a deprivation of equal protection by private persons. See id. at 97, 91 S.Ct. 1790. The Ninth Circuit has held that "the first requirement of the second element of § 1985(3) requires the deprivation of any legally protected right." Life Insurance Company of North America v. Reichardt, 591 F.2d 499, 503 (9th Cir. 1979). "In Lopez v. Arrowhead Ranches, 523 F.2d 924, 926, (9th Cir. 1975), this court explained Griffin as creating a cause of action for any tortious interference with a legally protected right if motivated by the requisite classbased animus . . .." Reichardt, 591 F.2d at 503. Plaintiff herein satisfies this first requirement by alleging the tortious interference of his right to privacy.⁵

Because Griffin dealt with allegations by blacks of a conspiracy to deprive them of their civil rights, the Supreme Court did not articulate what non-racial "class-based, invidiously discriminatory animus" would be actionable under § 1985(3). The Ninth Circuit has held that the coverage of § 1985(3) is to be determined by the "principle underlying its adoption: the Governmental determination that some groups require and warrant special federal assistance in protecting their civil rights." DeSantis v. Pacific Telephone & Telegraph Company, 608 F.2d 327 at 331 (9th Cir. 1979).⁶ Such a "Governmental determination" can be made by either the federal courts or Congress. See id.⁷

Plaintiff contends that he is a member of the "whistle blower" class (viz., "Federal employees who disclose illegal or improper government activities")⁸ and that this class is within the ambit of § 1985(3) protection. Plaintiff asserts that the requisite "Governmental determination" of warranted "special federal assistance" is incorporated in the Civil Service Reform Act of 1978 whereby Congress created the Merit Systems Protection Board to protect whistle blowers. 5 U.S.C. §§ 1201-09 (1978).

I find plaintiff's argument to be persuasive. The legislative history of this statute clearly indicates that Congress concluded that federal employees who are whistle blowers need special protection.⁹ This Congressional determination satisfies the Ninth Circuit test for class-based, invidiously discriminatory animus actionable under § 1985(3).¹⁰ Therefore, I conclude that whistle blowers as defined herein are a "class" within the meaning of § 1985(3).¹¹

Nevertheless, plaintiff's complaint fails to properly state a claim under § 1985(3). The first defect is that plaintiff fails to allege that defendant was involved in a conspiracy to deprive him of his right to privacy or any other legally protected right.¹² Secondly, plaintiff failed to specifically allege that the actions of the conspirators were motivated by an invidiously discriminatory animus against him as a federal employee whistler blower. Thus, the original complaint still fails to state a claim under § 1985(3) or any other statute and should be dismissed; however, because these defects could be cured, it is appropriate in this instance to grant plaintiff leave to amend his complaint. I conclude that the Order of Dismissal entered on June 5 should be modified to grant plaintiff 60 days from the entry of this order to amend his complaint.

It is so ordered.

1 Plaintiff also contended that defendant:

(a) "Informed the Court that Plaintiff, Jake Lapin, was obstructing justice by keeping him from deposing certain information from the employees of the Naval Audit Office" when this was untrue;

(b) Informed the Court that he would submit affidavits from certain employees of the Naval Audit Office when in fact he could not get the affidavits signed because the information therein was false;

(c) "Joined forces with certain employees of the Naval Audit Office, Honolulu desirous of attacking Plaintiff's, Jake Lapin's, credibility, reputation, and character for the purpose of having certain Counts in Civil No. 77-0421 dismissed by this Court;"

(d) Refused to accept a reasonable settlement offer and instead "continued the suit in such a manner that...