Frank v. USA ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50089
Summary Calendar
_____________________
IRA L. FRANK,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA, Department of
Justice; JANET RENO, U.S. Attorney General,
United States of America,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-99-CV-132-FB)
_________________________________________________________________
September 12, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ira L. Frank, an INS employee, appeals the summary judgment
granted the Government in his action brought pursuant to the
Privacy Act, 5 U.S.C. § 552a(e)(2). We conclude, based on our de
novo review of the record, that the district court did not err in
granting summary judgment. See FED. R. CIV. P. 56.
As the result of an INS investigation, discussed infra, Frank
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
was, inter alia, relocated. His administrative appeal is pending.
The merits of the proceedings are not at issue here. Instead, the
action at hand involves the Privacy Act.
The Government asserted in the district court, as well as on
appeal, that Frank improperly named Attorney General Reno as a
defendant, premised on the Privacy Act’s not giving federal courts
jurisdiction over individuals. Because the Government is correct,
and because Frank has agreed with the Government, we need not
address claims against the Attorney General. See Petrus v. Bowen,
833 F.2d 581, 582 (5th Cir. 1987).
Frank contends that: the Government failed to obtain
information directly from him to the greatest extent practicable
because the investigator interviewed others before interviewing
him; and OPM regulations required his being contacted first in the
investigation. We agree with other courts that have addressed this
issue that an investigator need not in all circumstances obtain
information first from the subject of an investigation. See, e.g.,
Darst v. Social Sec. Admin., 172 F.3d 1065, 1068 (8th Cir. 1999).
Here, the investigation concerned allegations of misconduct
involving sexually suggestive and inappropriate comments to
subordinates by Frank. The nature and the circumstances of the
alleged misconduct made it impracticable to interview Frank first;
and the Government's investigatory methods in this case did not
violate his rights under the Privacy Act. See Hudson v. Reno, 130
2
F.3d 1193, 1204-05 (6th Cir. 1997), cert. denied, 525 U.S. 822
(1998); Brune v. Internal Revenue Service, 861 F.2d 1284, 1287-88
(D.C. Cir. 1988).
AFFIRMED
3