Lambert v. Hartman ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0089p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
CYNTHIA LAMBERT,
-
-
-
No. 07-3154
v.
,
>
GREG HARTMAN, in his official capacity as Clerk of -
Courts, and HAMILTON COUNTY BOARD OF COUNTY -
-
Defendants-Appellees. -
COMMISSIONERS,
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 04-00837—Michael H. Watson, District Judge.
Argued: January 30, 2008
Decided and Filed: February 25, 2008
Before: GUY, GILMAN, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Marc D. Mezibov, LAW OFFICE OF MARC MEZIBOV, Cincinnati, Ohio, for
Appellant. Pamela J. Sears, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio,
for Appellees. ON BRIEF: Marc D. Mezibov, Christian A. Jenkins, Stacy Ann Hinners, LAW
OFFICE OF MARC MEZIBOV, Cincinnati, Ohio, for Appellant. Pamela J. Sears, Michael G.
Florez, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellees.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Cynthia Lambert appeals the district court’s
dismissal of her complaint against Greg Hartmann in his official capacity as the Hamilton County
Clerk of Courts (the “Clerk”) and against the Hamilton County Board of County Commissioners (the
“County”) (collectively the “Defendants”). In September of 2003, Lambert received a traffic
citation for speeding. She later discovered that this citation, which contained personal identifying
information (including her Social Security number), had been published on the Clerk’s public
website.
Lambert sued the Defendants pursuant to 42 U.S.C. § 1983, claiming that the publication of
the citation violated her constitutional right to privacy under the Fourteenth Amendment to the U.S.
1
No. 07-3154 Lambert v. Hartman et al. Page 2
Constitution. She further asserted that her identity had been stolen by a third party as a direct result
of the Clerk’s publication of the citation, and that she had consequently suffered economic damages,
damage to her personal credit rating, and damage to her reputation. Lambert also raised state-law
claims and sought to certify her complaint as a class action.
The Defendants moved to dismiss Lambert’s complaint on the basis that she had failed to
state a claim under § 1983. Concluding that Lambert’s § 1983 claim must fail because her alleged
privacy interest was not of a constitutional dimension, the district court granted the Defendants’
motion. The court then dismissed her pendent state-law claims without prejudice. Lambert argues
that the court erred in dismissing her complaint and renews her claim that the Defendants violated
her constitutional right to privacy. For the reasons set forth below, we AFFIRM the judgment of
the district court.
I. BACKGROUND
A. Factual background
In September of 2003, Lambert received a traffic citation for speeding in Hamilton County,
Ohio. The issuing officer completed an Ohio Uniform Traffic Ticket, a form used throughout Ohio
that includes a person’s name, signature, home address, birth date, driver’s license number, and
Social Security number. One copy of the citation was given to Lambert and another was filed with
the Clerk’s Office. Approximately a year after she received the citation, Lambert was contacted by
two retail stores about suspicious purchases that had been made in her name. The individual who
made the purchases presented a driver’s license that displayed Lambert’s full name, home address,
birth date, driver’s license number, and Social Security number.
During her conversations with the retailers, Lambert was informed that the identity thief
might have gained access to her personal information through the Clerk’s website. Lambert then
looked on the internet and discovered that the Clerk’s publicly accessible site made it possible to
search and locate traffic citations that retained all of an individual’s identifying information,
including his or her Social Security number. When Lambert examined her citation on the website,
she realized that, like the fake identification used by the identity thief, the citation contained a
driver’s license number that was incorrect by one digit. Lambert promptly called the Clerk’s Office
to complain about the publication of her personal information. The Clerk’s Office refused to remove
the information, explaining to Lambert that the records were made public for the convenience of the
parties and that to remove the records “would require vast amounts of manpower.”
Lambert filed suit against the Defendants in December of 2004. By that time, law
enforcement officials had apprehended a group of individuals who had gained access to the personal
information of numerous people found on the Clerk’s website and had used that information to
commit identity theft. The police informed Lambert that they had arrested a person who was a part
of that ring, a woman who later admitted that she was the thief who stole Lambert’s identity from
the Clerk’s website. That woman was later charged with a conspiracy to commit identity theft,
convicted, and sentenced to 139 months’ imprisonment for her actions.
B. Procedural background
Lambert’s claim under 42 U.S.C. § 1983 alleged that the Clerk’s policy and practice of
publishing personal information on a public website violated her Fourteenth Amendment right to
privacy, in addition to her Fourth Amendment right to be free from unreasonable searches and
seizures, and her Fourteenth Amendment rights to substantive and procedural due process. She
contended that, as a result of the Clerk’s policy, she had suffered “economic damages, damages to
her personal credit rating, and damage to her reputation.” Lambert also raised claims under the
common law of Ohio for violation of her right to privacy and the tort of publication of private facts.
No. 07-3154 Lambert v. Hartman et al. Page 3
Finally, she requested the certification of a class action under Rule 23 of the Federal Rules of Civil
Procedure on behalf of a putative class of “hundreds of thousands” of people whose Social Security
numbers had been published on the Clerk’s website.
Lambert originally sought declaratory relief, compensatory damages, and an injunction to
prevent the publication of the personal information in question. She later sought leave to amend her
complaint, removing her demand for compensatory damages and substituting instead a request for
“uniform, class-wide relief in the form of a credit monitoring fund or other prophylactic measure
to detect or prevent potential identity theft.”
The Defendants moved to dismiss Lambert’s complaint, arguing, among other things, that
she had failed to state a claim upon which relief could be granted. In December of 2006, the district
court entered an order granting the Defendants’ motion and dismissing all of Lambert’s claims. The
court reviewed Sixth Circuit precedent addressing the constitutional right to privacy of personal
information and concluded that Lambert’s claim was without merit because the privacy interest she
asserted did “not implicate either a fundamental right or one implicit in the concept of ordered
liberty.” Noting that Lambert identified only a “risk of financial harm,” the court determined that
this injury “bears no equivalence to the potential and actual harm” suffered by the plaintiffs in cases
where the Sixth Circuit has recognized a Fourteenth Amendment right to privacy against the
disclosure of personal information. The district court therefore agreed with the Defendants that
Lambert’s claim failed to state a claim under 42 U.S.C. § 1983, concluded that a ruling on her
proposed amended complaint was unnecessary, and declined to exercise supplemental jurisdiction
over her state-law claims. This timely appeal followed.
II. ANALYSIS
A. Standing
The Defendants assert that because Lambert is no longer seeking compensatory damages and
“limits her remedy to credit monitoring relief,” she does not have standing to bring her claim. Their
contention on this point is somewhat confusing, interchangeably arguing that Lambert’s injury is
not fairly traceable to the publication of her Social Security number and that “the injury of identity
theft in the future is too speculative and conjectural to entitle her to [credit-monitoring] relief.”
Lambert has failed to address the Defendants’ challenge, but we nevertheless conclude that she has
standing to bring her claim.
To bring a claim in federal court, a plaintiff “must satisfy the threshold requirement imposed
by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983). This burden can be met by Lambert showing that “(1) [she] has
suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) [her] injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that [her] injury will be redressed
by a favorable decision.” See Daubenmire v. City of Columbus, 507 F.3d 383, 388 (6th Cir. 2007)
(internal quotation marks omitted).
Lambert has alleged that her identity was stolen and that her financial security and credit
rating suffered as a result. She also claims that because of the nature of identity theft, she has been
exposed to the risk that people have accessed her personal information on the internet and will be
able to use that information to commit future acts of identity theft against her. Although this latter
injury is somewhat “hypothetical” and “conjectural,” her actual financial injuries are sufficient to
meet the injury-in-fact requirement. See Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of
Shelby, Mich., 470 F.3d 286, 294 (6th Cir. 2006) (noting that “[t]his Court has explicitly held that”
certain types of economic injuries are sufficient to confer standing).
No. 07-3154 Lambert v. Hartman et al. Page 4
Indeed, the Defendants do not dispute that Lambert has been injured. They instead attack
her standing on the basis that her injuries are not fairly traceable to the Clerk’s website.
Specifically, they argue that the harm suffered by Lambert was caused by an intervening act—the
criminal act of a third party. They therefore claim that Lambert has not met the second prong of the
standing test because she is unable to demonstrate that her injuries are fairly traceable to the
Defendants.
The Defendants are correct in pointing out that a third party was undoubtedly the direct
cause of Lambert’s injuries. But because both the traffic citation and the fake identification used
to make purchases in Lambert’s name contained the identical, incorrect driver’s license number,
Lambert was able to link the act of identity theft to the personal information that was made available
by the Clerk. Moreover, the identity thief (who was indicted and convicted before the district court
dismissed Lambert’s case) acknowledged that she had taken Lambert’s personal information from
the Clerk’s website. Lambert thus alleged sufficient facts to show that her injuries were fairly
traceable to the publication of her personal information by the Clerk. See Village of Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 261 (1977) (explaining that the cause of the
plaintiff’s asserted injury may be indirect so long as the complaint indicates “that the injury is indeed
fairly traceable to the defendant’s acts or omissions”).
The Defendants also challenge the relief sought by Lambert. They argue that the credit-
monitoring fund requested by Lambert would remedy neither her past injury of “publication” nor
her potential injury of “future identity theft.” The Defendants cite a number of cases that, according
to their interpretation, support the contention that Lambert does not have standing. But only one of
these cases even addresses standing, and in that case the Sixth Circuit concluded that the plaintiff
had pled facts sufficient to confer standing. See Sutton v. St. Jude Medical S.C., Inc., 419 F.3d 568,
575 (6th Cir. 2005) (concluding that the plaintiff had standing to seek medical testing and
monitoring allegedly made necessary by the increased risk of future harm created by a heart-valve
implant).
Indeed, the Defendants mischaracterize both the injury that Lambert has alleged and the
nature of the relief that she seeks. Lambert claims that the past identity theft has damaged her credit
rating and that the publication of her personal information has exposed her to a risk of future identity
theft. This court’s decision in Sutton undermines, rather than supports, the Defendants’ contention
that a monitoring fund would not redress these injuries. We explained in Sutton that if the plaintiff
could prove that the implanted heart valve had increased the future risk to his health, “medical
monitoring [would] undoubtedly help to remedy the situation.” Id. Likewise, if Lambert were able
to prove that she continues to face an increased risk of identity theft, she could likely show that
monitoring suspicious activity on her credit report would not only combat that future risk, but would
also help to redress the past financial injury that she has suffered. For these reasons, we conclude
that Lambert has standing to bring her claims.
B. Immunity claims
The Defendants also raise a number of immunity defenses as an alternative ground for
rejecting Lambert’s claims. Although Lambert acknowledges that her opponents raised these claims
before the district court and on appeal, she declined to address them in either of her briefs or during
oral argument. The district court likewise declined to consider any of these arguments, resting its
dismissal of Lambert’s claims on the merits. Because we agree with the district court’s disposition
of this case on the merits, we similarly see no need to address the Defendants’ immunity arguments.
See, e.g., Nair v. Oakland County Cmty. Mental Health Auth., 443 F.3d 469, 477 (6th Cir. 2006)
(explaining that where, as here, a defendant declines to raise Eleventh Amendment immunity as a
threshold defense, “federal courts have discretion to address the sovereign-immunity defense and
the merits in whichever order they prefer”).
No. 07-3154 Lambert v. Hartman et al. Page 5
C. Lambert’s § 1983 claim
1. Standard of review
We review de novo the district court’s decision to grant a defendant’s motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dubay v. Wells, 506 F.3d 422,
427 (6th Cir. 2007). “A motion to dismiss for failure to state a claim is a test of the plaintiff’s cause
of action as stated in the complaint, not a challenge to the plaintiff’s factual allegations.” Golden
v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). We must therefore construe the
complaint in a light most favorable to Lambert and accept all of her factual allegations as true. See
Dubay, 506 F.3d at 427. Although the factual allegations in a complaint need not be detailed, they
“must do more than create speculation or suspicion of a legally cognizable cause of action; they
must show entitlement to relief.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523,
527 (6th Cir. 2007) (emphasis in original) (citing Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1964-65
(2007)).
2. Municipal liability under 42 U.S.C. § 1983A prima facie case under § 1983 has two elements: “(1) the defendant must be acting under
the color of state law, and (2) the offending conduct must deprive the plaintiff of rights secured by
federal law.” Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citing Parratt v. Taylor, 451 U.S.
527, 535 (1981)). To succeed on a § 1983 claim against a local government, the plaintiff must also
prove that the injury about which she complains was caused by an unconstitutional government
policy or custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“[I]t is when
execution of a government’s policy or custom . . . inflicts the injury that the government as an entity
is responsible under § 1983.”).
There is no question, of course, that the Defendants acted under color of state law in making
Lambert’s traffic citation available on the internet. But the Defendants maintain that they cannot
be held liable for Lambert’s injuries because they were caused by a third party, the identity thief.
Although they do not frame it as such, this position is in essence an attack on Lambert’s ability to
show that the violation she alleges was “committed by a person acting under color of state law.”
See Harbin-Bey v. Rutter, 420 F.3d 571, 575, 577 (6th Cir. 2005) (citing West v. Atkins, 487 U.S.
42, 48 (1988)) (holding that a prison’s classification of an inmate as a security threat due to his gang
affiliation did not constitute an equal protection violation). We have determined, however, that a
§ 1983 plaintiff can “circumvent the state action requirement if he demonstrated that the state
created a special danger” in releasing private information that leads to harm. Barber v. Overton, 496
F.3d 449, 453-54 (6th Cir. 2007) (explaining that a plaintiff could meet the state-action requirement
by demonstrating that the state’s disclosure put the plaintiff at risk, but declining to reach that
question because the prison guards challenging the release of their personal information by prison
officials to prisoners had not demonstrated a constitutional violation of their rights to privacy); see
also Kallstrom v. City of Columbus, 136 F.3d 1055, 1063 (6th Cir. 1998) (holding that police
officers’ privacy interest in their personnel files were of a constitutional dimension where the city
“created a very real threat to the officers’ and their family members’ personal security and bodily
integrity, and possibly their lives”).
Moreover, Lambert sued the Clerk in his official capacity, which is the equivalent of suing
the Clerk’s employer, the County. See Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (“While
‘[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions
he takes under color of state law,’ individuals sued in their official capacities stand in the shoes of
the entity they represent.” (alteration in original) (quoting Kentucky v. Graham, 473 U.S. 159, 165
(1985))). The only issue in the present case, then, is whether the Clerk’s actions, as alleged in
No. 07-3154 Lambert v. Hartman et al. Page 6
Lambert’s complaint, were part of a policy or custom that violated Lambert’s constitutional right
to privacy.
3. The scope of the constitutional right to privacy
Two types of interests have been identified by the Supreme Court as protected by the right
to privacy that is rooted in the substantive due process protections of the Fourteenth Amendment.
One is the interest in “independence in making certain kinds of important decisions.” Whalen v.
Roe, 429 U.S. 589, 599-600 & n.26 (1977) (noting that these decisions have been characterized as
dealing with “matters relating to procreation, marriage, contraception, family relationships, and child
rearing and education” (quoting Paul v. Davis, 424 U.S. 693, 713 (1976))). The other type of
privacy interest applicable to individuals is the “interest in avoiding disclosure of personal matters.”
Id. at 599, 603-04 (recognizing that a statute requiring that the state be provided with a copy of
certain drug prescriptions implicated the individual’s interest in nondisclosure, but upholding the
law because the statute contained adequate security measures); Nixon v. Adm’r of Gen. Servs., 433
U.S. 425, 465 (1977) (assuming that President Nixon had a legitimate expectation of privacy in his
private communications, but upholding a federal law that provided for the review and classification
of presidential materials by professional archivists). Lambert’s claim implicates the latter interest,
which this court has described as “an individual’s right to control the nature and extent of
information released about that individual” and that “has been coined an informational right to
privacy.” Bloch v. Ribar, 156 F.3d 673, 683 (6th Cir. 1998).
This court, in contrast to some of our sister circuits, “has narrowly construed the holdings
of Whalen and Nixon to extend the right to informational privacy only to interests that implicate a
fundamental liberty interest.” Id. at 684. A plaintiff alleging a violation of her right to informational
privacy must therefore demonstrate that “the interest at stake relates to ‘those personal rights that
can be deemed fundamental or implicit in the concept of ordered liberty.’” Id. (quoting J.P. v.
DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981)). Only after a fundamental right is identified should
the court proceed to the next step of the analysis— the balancing of the government’s interest in
disseminating the information against the individual’s interest in keeping the information private.
See Kallstrom, 136 F.3d at 1061 (“This circuit . . . will only balance an individual’s interest in
nondisclosure . . . against the public’s interest in and need for the invasion of privacy where the
individual privacy interest is of constitutional dimension.”).
Applying these standards, this court has recognized an informational-privacy interest of
constitutional dimension in only two instances: (1) where the release of personal information could
lead to bodily harm (Kallstrom), and (2) where the information released was of a sexual, personal,
and humiliating nature (Bloch). In Kallstrom, the plaintiffs were undercover police officers who had
been actively involved in a drug-conspiracy investigation of a violent gang and who had
subsequently testified at trial against a number of the gang’s members. 136 F.3d at 1059. During
the trial, the city—despite having promised to keep the officers’ personnel records
confidential—released the officers’ records to defense counsel. The records contained, among other
personal information, the names and addresses of the officers, their immediate family members, and
their personal references. Id.This court in Kallstrom concluded that the officers’ privacy interests were of constitutional
dimension because they implicated a fundamental interest “in preserving their lives and the lives
of . . . their family members, as well as preserving their personal security and bodily integrity.” Id.
at 1062. That conclusion was supported by a long line of cases, dating back to the nineteenth
century, in which courts have held that individuals have a constitutional right to avoid the kind of
physical invasions or abuse that “strip[] the very essence of personhood.” Id. at 1063 (internal
quotation marks omitted). The Kallstrom court’s holding therefore rested on the finding that the
city’s disclosure had created a risk that the officers’ personal information might “fall into the hands
No. 07-3154 Lambert v. Hartman et al. Page 7
of persons likely to seek revenge upon the officers” and had created a “very real threat” to the
officers’ and their family members’ bodily integrity and possibly even their lives. Id.In Bloch, this court considered whether the constitutional right to informational privacy was
triggered by a press conference in which the sheriff released the “highly personal and extremely
humiliating details” of the rape to which Bloch had been subjected, some of which were “so
embarrassing she had not even told her husband.” Bloch, 156 F.3d at 676. The court concluded that
Bloch could invoke her Fourteenth Amendment right to privacy because “sexuality and choices
about sex, in turn, are interests of an intimate nature which define significant portions of our
personhood.” Id. at 685.
As in Kallstrom, this court’s holding in Bloch was premised on the notion that the disclosure
of private sexual information implicated a “fundamental right or one implicit in the concept of
ordered liberty”—namely the fundamental right of privacy in one’s sexual life. Id. at 684, 686. The
clear principle emerging from Bloch is that the sheriff’s publication of the details of Bloch’s rape
implicated her right to be free from governmental intrusion into matters touching on sexuality and
family life, and that to permit such an intrusion would be to strip away the very essence of her
personhood. See id. at 685 (citing Thorne v. City of El Segundo, 726 F.2d 459, 468 (9th Cir. 1983),
for the proposition that an individual’s privacy right in her sexual activities “follow[ed] from the
cases holding that such basis matters as contraception, abortion, marriage, and family life are
protected by the constitution from unwarranted government intrusion”).
4. Lambert’s claim of a constitutional deprivation
In the face of the Sixth Circuit’s restrictive view of informational privacy, Lambert makes
two principal arguments to support her assertion that the district court erred in dismissing her
complaint. She first claims that the district court’s analysis was flawed because “[t]he proper
framework should be whether the claimant has a ‘reasonable expectation of privacy’ in the
information he or she wants to keep private, and, if so, whether the government has any legitimate
interest in disclosing such information to weigh against the individual interest in disclosure.”
Second, she contends that the court erred in concluding that the Clerk’s publication of her traffic
citation on the internet did not implicate a fundamental right.
a. Request for a new standard
Lambert’s first argument is a request for us to adopt a new approach to assessing
informational privacy claims—one that does not require the court to first determine whether the
privacy interest implicates a fundamental right. The reasonable-expectation-of-privacy standard that
Lambert proposes is in many ways similar to the more fluid approach that other circuits have
adopted for assessing claims of informational privacy. See Kallstrom, 136 F.3d at 1061 n.1 (citing
cases in support of the proposition that “[o]ther circuits have interpreted Whalen and Nixon as
creating a broad constitutional right to informational privacy to be balanced against the public’s
interest and need for the invasion of privacy”); cf. Helen L. Gilbert, Comment, Minors’
Constitutional Right to Informational Privacy, 74 U. Chi. L. Rev. 1375, 1382 (2007) (contrasting
the Sixth Circuit’s approach to informational privacy with other circuits that do not require the
implication of a fundamental liberty interest, and instead “decide if the party alleging an invasion
of privacy has a legitimate expectation of privacy in the information in question”).
Employing this standard, Lambert argues that she has a reasonable expectation of privacy
in her Social Security number, and that the district court therefore erred in failing to balance that
interest against the Defendants’ interest in publishing unredacted public records on the internet.
Lambert is of course correct in pointing out that both Congress and the courts have recognized the
privacy interest in one’s Social Security number. See, e.g., Privacy Act of 1974, 5 U.S.C. § 552a
(providing restrictions on the disclosure of Social Security numbers); Sherman v. U.S. Dep’t of the
No. 07-3154 Lambert v. Hartman et al. Page 8
Army, 244 F.3d 357, 365 (5th Cir. 2001) (noting, in the context of a Freedom of Information Act
request, that “an individual’s informational privacy interest in his or her SSN [Social Security
number] is substantial”); In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999) (recognizing that “the
indiscriminate public disclosure” of Social Security numbers might implicate the constitutional right
to privacy, but concluding that any interest in nondisclosure was outweighed by the government’s
interest in making bankruptcy documents available to the general public).
The Sixth Circuit, however, has developed and applied a different approach to assessing
informational privacy claims. As discussed above, that approach requires that the asserted privacy
interest implicate a fundamental right. See Bloch, 156 F.3d at 684; DeSanti, 653 F.2d at 1090(holding that the disclosure of juveniles’ records to juvenile court personnel did not implicate the
plaintiffs’ fundamental rights); Kallstrom, 136 F.3d at 1061-62 (explaining that the DeSanti court
“rejected the notion of a general constitutional right of nondisclosure of personal information against
which the governmental action must be weighed”). We are bound by those decisions unless this
court sitting en banc or the Supreme Court holds otherwise, and Lambert’s argument must fail for
that reason. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985)
(explaining that the decision of a prior panel “remains controlling authority unless an inconsistent
decision of the United States Supreme Court requires modification of the decision or this Court
sitting en banc overrules the prior decision”).
b. Existence of a fundamental right
The district court recognized that this court’s precedents require a showing of a privacy
interest that implicates a right that is either “fundamental” or “implicit in the concept of ordered
liberty.” See Bloch, 156 F.3d at 684. After reviewing Kallstrom and Bloch, it concluded that
Lambert could not meet this standard because she had “only identified a risk of financial harm.”
This harm, the court noted, “bears no equivalence to the potential and actual harm suffered by the
Kallstrom and Bloch plaintiffs, respectively.” The court therefore refused to balance Lambert’s
privacy interest against the Defendants’ interest in making public records available on the internet.
Lambert disputes the district court’s conclusion that her harm does not meet the first prong of the
test for informational-privacy claims, arguing that the Defendants’ invasion of her privacy implicates
her fundamental rights.
There are two ways for Lambert to demonstrate that a fundamental right underlies her
privacy claim. The first would be to link her interest in nondisclosure to an already established
fundamental right. Indeed, this is how the plaintiffs in Kallstrom and Bloch succeeded. See Bloch,
156 F.3d at 685 (acknowledging the well-recognized right to privacy in intimate matters); Kallstrom,
136 F.3d at 1062-63 (describing the long history of the right to bodily integrity). Lambert attempts
to make this showing by claiming that, like the police officers in Kallstrom, her fundamental liberty
interest in personal security was compromised by the Clerk’s actions.
Alternatively, Lambert could attempt to identify a new fundamental right that was implicated
by the public disclosure of her Social Security number. Because the very notion of a fundamental
right is rooted in substantive due process, such rights must be based on a protectible interest in life,
liberty, or property. See Does v. Munoz, 507 F.3d 961, 965 (6th Cir. 2007) (explaining that some
deprivations of life, liberty or property are subject to substantive limitations that provide “heightened
protection against government interference with certain fundamental rights” (citations and internal
quotation marks omitted)). But this court has recognized that “identifying a new fundamental right
subject to the protections of substantive due process is often an uphill battle, as the list of
fundamental rights is short.” Id. (internal quotation marks omitted). Any fundamental right,
moreover, must be either “deeply rooted in this Nation’s history and tradition” or “implicit in the
concept of ordered liberty.” Id. (internal quotation marks omitted).
No. 07-3154 Lambert v. Hartman et al. Page 9
Lambert asserts that the privacy invasion she has alleged is related to (1) her right to personal
security, (2) her right to her reputation and good name, and (3) her right to property. She describes
the first two as fundamental liberty interests, and the third as a fundamental property interest.
i. Liberty interests
Lambert asserts that the disclosure of her Social Security number implicates two liberty
interests. First, she characterizes the theft of her identity as an interference with the right to personal
security recognized in Kallstrom. She then describes the damage to her credit rating as an injury to
her reputation, which she claims this court has recognized as a fundamental liberty interest.
Lambert’s attempt to characterize the Clerk’s action as an interference with her right to
personal security as discussed in Kallstrom is unpersuasive. The Kallstrom court unambiguously
identified the right involved in that case as one of personal security and bodily integrity, making
clear that the fundamental right at issue was a protection against physical invasions. Indeed, the
court in Kallstrom noted that not even all risks of physical harm created by disclosure would trigger
the right to privacy under the Fourteenth Amendment. Rather, the officers in that case could invoke
constitutional protection only because they were placed “at substantial risk of serious bodily harm,
possibly even death, from a perceived likely threat.” Kallstrom, 136 F.3d at 1064.
Lambert does not argue that the Clerk’s actions put her at any risk of physical harm. And
although she is undoubtedly correct that identity theft constitutes a serious personal invasion, it
simply does not implicate the well-established right to personal security as contemplated by this
court in Kallstrom. Cf. Barber v. Overton, 496 F.3d 449, 456 (6th Cir. 2007) (declining to recognize
a privacy interest of a constitutional dimension where prison officials inadvertently released the
Social Security numbers of prison guards to inmates, and concluding that “the release of the social
security numbers was not sensitive enough nor the threat of retaliation apparent enough to warrant
constitutional protection here”).
Lambert next claims that the harm to her “creditworthiness” constitutes a reputational injury
that implicates a fundamental liberty interest. Despite the obvious reputational interests at play in
Bloch, Lambert makes no attempt to analogize her harm to that of the injury suffered by the rape
victim in that case. She instead relies on this court’s decision in Chilingirian v. Boris, 882 F.2d 200(6th Cir. 1989), for the proposition that “a person’s reputation, good name, honor, and integrity are
among the liberty interests” protected by the Fourteenth Amendment. Id. at 205 (citing Board of
Regents v. Roth, 408 U.S. 564, 573 (1972)).
Even accepting the questionable assertion that one’s credit rating is the type of reputational
interest protected by the Due Process Clause of the Fourteenth Amendment, the fact that this court
has recognized a liberty interest in one’s reputation does not necessarily mean that such an interest
is either “fundamental” or “inherent in the concept of ordered liberty.” Cf. Does, 507 F.3d at 965(explaining that substantive due process protects only “certain fundamental rights and liberty
interests,” and noting that the “list of fundamental rights is short” (internal quotation marks
omitted)). Moreover, the plaintiff in Chilingirian brought a procedural due process claim, and this
court concluded that an informal “name-clearing hearing” provided sufficient protection of the
plaintiff’s liberty interest in his reputation. Chilingirian, 882 F.2d at 205-06. But the very fact that
an informal hearing was sufficient to protect Chilingirian’s liberty interest in his reputation negates
Lambert’s claim that the interest involved was fundamental. See Does, 507 F.3d at 964 (noting that
certain deprivations of liberty fundamental enough to violate a person’s right to substantive due
process “are subject to limitations regardless of the adequacy of the procedures employed”
(emphasis added) (internal quotation marks omitted)).
Lambert has provided no support for the proposition that the harm to her credit implicates
a liberty interest that any court has recognized as fundamental, and her argument to the contrary is
No. 07-3154 Lambert v. Hartman et al. Page 10
simply unpersuasive. Furthermore, she does not even begin to meet the hurdle required for the
recognition of a new fundamental right. The protection of a person’s credit is a concept relating to
one’s finances and economic well-being, one that by its very nature bears no relationship to the
kinds of interests that are “implicit in the concept of ordered liberty.” See Overstreet v. Lexington-
Fayette Urban County Gov’t, 305 F.3d 566, 575 (6th Cir. 2002) (affirming the denial of a
preliminary injunction to a county employee who challenged a policy mandating public disclosure
of real estate holdings because “[t]he privacy interest one may have in one’s personal finances and
real estate holdings is far afield from [the] intimate concerns” recognized as fundamental privacy
interests); cf. Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir. 1999) (rejecting a challenge to a
state sex-offender registry on constitutional privacy grounds because the law did “not impose any
restrictions on [the plaintiff’s] personal rights that are fundamental or implicit in the concept of
ordered liberty, such as his procreative or marital rights”). We therefore agree with the district court
that Lambert’s injuries are more properly described as financial in nature and not truly liberty
interests at all.
ii. Property interest
Although this court has never acknowledged a constitutional right to privacy based on the
infringement of a property interest, Lambert urges us to recognize such a right in this case. She
contends that the Clerk’s disclosure of her Social Security number implicated her “fundamental right
to property,” and that we should proceed to balance her privacy interest against the government’s
purpose in publishing records on the internet. The Defendants, in contrast, contend that Kallstrom
and Bloch make clear that this court will recognize a privacy interest of constitutional magnitude
only if a fundamental liberty interest is implicated.
Even if we were prepared to recognize a constitutional privacy interest based on a property
right, Lambert’s claim would fail because she has not demonstrated that she had a constitutionally
protectible property interest in her personal information. See Silver v. Franklin Twp. Bd. Of Zoning
Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992) (“To establish a violation of substantive due process,
a plaintiff must first establish the existence of a constitutionally-protected property . . . interest.”).
Lambert never articulates precisely what property deprivation the Defendants’ exacted upon her,
although we presume that she is referring to the various financial injuries she suffered. The
Defendants, however, are correct to point out that this court’s precedents are not amenable to the
recognition of a constitutional right to privacy based on the infringement of a property interest. See,
e.g., Overstreet, 305 F.3d at 575 (declining to recognize a privacy interest of constitutional
dimension “in one’s personal finances and real estate holdings”); Bloch, 156 F.3d at 684 (noting that
this court has “extend[ed] the right to informational privacy only to interests that implicate a
fundamental liberty interest” (emphasis added)).
Lambert has undoubtedly shown that, as a policy matter, the Clerk’s decision to provide
unfettered internet access to people’s Social Security numbers was unwise. This much is evidenced
by the fact that the Defendants have subsequently removed the citations in question from the website
and changed the local rules to better protect sensitive personal information. But to constitutionalize
a harm of the type Lambert has suffered would be to open a Pandora’s box of claims under 42
U.S.C. § 1983, a step that we are unwilling to take. See Paul v. Davis, 424 U.S. 693, 699 (1976)
(rejecting a § 1983 claim against police officials who included the plaintiff’s name and mug shot on
a flyer warning local merchants about possible shoplifters, and explaining that the plaintiff’s legal
argument “would seem almost necessarily to result in every legally cognizable injury which may
have been inflicted by a state official acting under ‘color of law’ establishing a violation of the
Fourteenth Amendment”). Indeed, absent a showing of an infringement of a right that is
“fundamental or implicit in the concept of ordered liberty,” this court’s precedents bar an action
under 42 U.S.C. § 1983 from proceeding any further. Lambert has simply failed to make such a
showing.
No. 07-3154 Lambert v. Hartman et al. Page 11
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.