Petition for Writ of Certiorari — Cline v. Rogers

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Supreme Oourt, 6.8, .

FILED

96 46 4 SEP 23 199%

No. OF 05 is usa

October Term, 1995

JACKIE RAY CLINE,

Petitioner,

vs.

GEORGE W. ROGERS, individually, and in his capacity as

Sheriff of McMinn County, and McMINN COUNTY,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

JUDY PINKSTON McCARTHY

Counsel of Record

DENNIS MICHAEL McCARTHY

Attorneys for Petitioner

406 Union Avenue

Suite 500

P.O. Box 2142

Knoxville, Tennessee 37901-2142

(423) 525-0855

9612

CArgae a (800) 3 APPEAL « (800) 5 APPEAL * (800) BRIEF 21 ae

a (0 PV?

QUESTIONS PRESENTED

I. Whether an individual’s privacy interests in criminal

history information stored in a government data bank is

constitutionally protected.

II. Whether misuse of information collected in a

government data bank violates an individual’s constitutionally

protected privacy interests.

III. Whether 42 U.S.C. § 3789g, which controls the use of

criminal history information, creates enforceable rights to be

free from unwarranted disclosure of such information.

IV. Whether individuals have a cause of action under 42

U.S.C. § 1983 for violations of 42 U.S.C. § 3789g.

V. Whether 42 U.S.C. § 3789g creates an implied cause of

action for unwarranted disclosure of criminal history

information.

VI. Whether sua sponte dismissal is permissible when the

party being dismissed did not receive prior notice of the

intention of the court to dismiss and the opportunity to respond

prior to dismissal.

LIST OF PARTIES

The names of all parties to the proceedings in the Court

below appear in the caption of this case. No party has a parent or

subsidiary company.

iti

TABLE OF CONTENTS

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Reasons for Granting the Writ .....................

Il.

Ill.

An Individual’s Privacy Interests In Criminal

History Information Stored In A Government

Data Bank Is Constitutionally Protected. ......

Misuse Of Information Collected In A

Goverment Data Bank Violates An Individual’s

Constitutionally Protected Privacy Interests. ..

42 U.S.C. § 3789g, Which Controls The Use Of

Criminal History Information, Creates

Enforceable Rights To Be Free From

Unwarranted Disclosure Of Such Information.

Page

Contents

IV. Individuals Have A Cause Of Action Under 42

U.S.C. § 1983 For Violations Of 42 U.S.C.

Bi Merrre preter rey rey re

V. 420U.S.C. §3789g Creates An Implied Cause Of

Action For Unwarranted Disclosure of Criminal

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VI. Sua Sponte Dismissal Is Impermissible When The

Party Being Dismissed Did Not Receive Prior

Notice Of The Intention Of The Court To Dismiss

And The Opportunity to Respond Prior To

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TABLE OF CITATIONS

Cases Cited:

Alexander v. FBI, No. 1:96 CV 02123(R)(C)(L)

(D.C.D.C. filed September 12, 1996) .............

Batterton v. Francis, 432 U.S. 416, 97 S. Ct. 2399, 53 L.

hc LOE ED 008 V5 Sa ek eee Rees

Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26

CID TOD -n5 vin vo cwesdonesesscccdugiundvssneansed

Fadjo v. Coon, 633 F.2d 1172 (Sth Cir. 1981) .........

J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981) .........

Page

Contents

Page

Meritor Savings Bank v. Vinson, 477 U.S. 57, 1068S. Ct.

ye RE. Fe Cd ee ee ee 14

Middlesex County Sewage Authority v. National Sea

Clammers, 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d

BE CIOGES oi cidc kkk Wied ecedkscteeeeeer beeen 18

Morrison v. Tomano, 755 F.2d 515 (6th Cir. 1985) ..... 22

Nixon v. Administrator, 433 U.S.425 (1977) ......... ll

Paul v. Davis, 424 U.S. 693 (1976) ................. 11

Polchowski v. Gorris, 714 F.2d 749 (7th Cir. 1983) ..12,13,17

Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983) ..... 22

Tosh v. Buddies Supermarkets, Inc., 482 F.2d 329 (Sth Cir.

SUISSE ae ek Eee kh Aika er ea teers 9,10

U.S. Dept. of Justice v. Reporters Comm. for Freedom of

the Press, 489 U.S. 749, 109S. Ct. 1468, 103 L. Ed. 2d

TIMER abs ced eneh si nbd vag tenes Chee KEE Nes 6,7,8,9

Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d

GOITD TT) ic 3 UES 5F5 eee aS his eo een e dis 6,10, 11

Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 110S. Ct.

2310, LIOL.. BE. ZE4SS CIGSO) vac civevaccvvicese 13

Wood v. Tompkins, 33 F.3d 600 (6th Cir. 1994) ........ 13,14

Contents

Page

Wright v. City of Roanoke Redevelopment and Housing

Authority, 479 U.S. 418, 107 S. Ct. 766, 93 L. Ed. 2d

POs COSTE 6s cn 00sec cseedesk¥eb6005 RET sabes bent 18

Statutes Cited:

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CZUL BA IFES ce vedrddievevdaeceuees i, 1,4,5,6, 18,21

42 U.S.C. §3789g .. i, 1,3, 4,5, 6, 12, 13, 15, 17, 18, 19, 20, 21

USL STN) 2868 AA Re 12

SFU SLOT. s o.osickoc 12, 13,14

OS OST So RE ee 4,7,20

42 U.S.C. § STORE) | ocd cocevacscassewccesan 4,14, 15,20

vii

Contents

Page

Rule Cited:

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Other Authorities Cited:

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POG 5h aE K ERS san sober bccaeens 12, 13, 15,20

PGE EE d vanish y ewe oedn tN cue ciceecki 16,17

Sts NED» 4 0 das 04 bb. hopes phd boo om 15, 16,17

WE Mane DRONA ein dd Aa ok awh Reh dak daceanie 13,17

APPENDIX

Appendix A — Opinion of United States Court of

Appeals for the Sixth Circuit, Filed June 25,1996 .. la

Appendix B — Order and Judgment of the United States

District Court, Eastern District of Tennessee at

Chattanooga, Filed September 12,1994 .......... 19a

Appendix C — Memorandum of the United States

District Court, Eastern District of Tennessee at

Chattanooga, Filed September 12,1994 ........... 2la

OPINIONS BELOW

The Opinion of the Court of Appeals has been

recommended for publication. Its electronic citation is 1996

Fed. App. 0182p (6th Cir.). It is reproduced in the Appendix

(App.) at la. The Order and Judgment of the District Court is

reproduced at 19a, and the unpublished Memorandum is at 21a.

STATEMENT OF JURISDICTION

The Court of Appeals entered its judgment on June 25,

1996. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

The two statutes of primary concern in this case are 42

U.S.C. § 3789g and 42 U.S.C. § 1983.

I. All subsections of 42 U.S.C. § 3789g are set out below:

(a) Research or statistical information;

immunity from process; prohibition

against admission as evidence or use in

any proceedings

Except as provided by Federal law other

than this chapter, no officer or employee of

the Federal Government, and no recipient of

assistance under the provisions of this

chapter shall use or reveal any research or

statistical information furnished under this

chapter by any person and identifiable to any

specific private person for any purpose other

than the purpose for which it was obtained in

accordance with this chapter. Such

information and copies thereof shall be

immune from legal process, and shall not,

without the consent of the person furnishing

such information, be admitted as evidence or

used for any purpose in any action, suit, or

other judicial, legislative, or administrative

proceedings.

(b) Criminal history information;

disposition and arrest data; procedures

for collection, storage, dissemination, and

current status; security and privacy;

availability for law enforcement, criminal

justice, and other lawful purposes;

automated systems: review, challenge,

and correction of information.

All criminal history information collected,

stored, or disseminated through support

under this chapter shall contain, to the

maximum extent feasible, disposition as

well as arrest data where arrest data is

included therein. The collection, storage,

and dissemination of such information shall

take place under procedures reasonably

designed to insure that all such information

is kept current therein; the Office of Justice

Programs shall assure that the security and

privacy of all information is adequately

provided for and that information shall only

be used for law enforcement and criminal

justice and other lawful purposes. In

addition, an individual who believes that

criminal history information concerning

him contained in an automated system is

inaccurate, incomplete, or maintained in

violation of this chapter, shall, upon

satisfactory verification of his identity, be

entitled to review such information and to

obtain a copy of it for the purpose of

challenge or correction.

information; prohibition against

violation of privacy and constitutional

rights of individuals.

All criminal intelligence systems operating

through support under this chapter shall

collect, maintain, and disseminate criminal

intelligence information in conformance

with policy standards which are prescribed

by the Office of Justice Programs and which

are written to assure that the funding and

operation of these systems furthers the

purpose of this chapter and to assure that

such systems are not utilized in violation of

the privacy and constitutional rights of

individuals.

(d) Violations; fine as additional penalty.

Any person violating the provisions of this

section, or of any rule, regulation, or order

issued thereunder, shall be fined not to

exceed $10,000, in addition to any other

penalty imposed by law.

42 U.S.C. § 3789g (1989).

II. 42 U.S.C. § 1983 states:

Every person who, under color of any

stature, ordinance, regulation, custom, or

usage, of any State or Territory or the

District of Columbia, subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in

equity, or other proper proceeding for

redress. For the purposes of this section, an

Act of Congress applicable exclusively to

the District of Columbia shall be considered

to be a statute of the District of Columbia.

42 U.S.C. § 1983 (1979).

STATEMENT OF THE CASE

In late 1992, a private citizen asked Sheriff George W.

Rogers to access criminal history records of Jackie Ray Cline to

find out if he had ever been arrested. Access to criminal records

is controlled and protected by 42 U.S.C. § 3789g. Such

information may be used only for law enforcement and

similarly related official business. 42 U.S.C. § 3789g(c).

Unlawful access is punishable by fine, “in addition to any other

penalty imposed by law.” 42 U.S.C. § 3789g(d). Sheriff Rogers

conducted a state and local search and then requested a

computer search of the FBI’s National Crime Information

Center (NCIC) records. Sheriff Rogers conveyed the

information obtained from the searches to the private citizen

who had requested the information for private use, unrelated to

law enforcement.

This action was brought under 42 U.S.C. §§ 1983 and

3789 for violation of Jackie Ray Cline’s rights. Cline also

asserted an implied private cause of action under 42 U.S.C.

§ 3789 as well as state and federal constitutional rights to

privacy. The complaint was filed in the U. S. District Court for

the Eastern District of Tennessee, Southern Division, on

September 13, 1993. Jurisdiction was appropriate under 28

U.S.C. §§ 1331 and 1343(a)(3).

On November 4, 1993, McMinn County moved to dismiss,

pursuant to Fed. R. Civ. P. 12(b)(6), claiming only that 42

U.S.C. § 3789g does not provide private rights that can be

enforced under 42 U.S.C. § 1983. McMinn County did not

address the other claims in the complaint. Sheriff Rogers never

filed a Motion to Dismiss.

On September 12, 1994, the Honorable R. Allan Edgar,

United States District Judge, entered a judgment granting

McMinn County's Motion to Dismiss. App. at 19a. Judge Edgar

also dismissed, sua sponte with prejudice, all of Cline’s other

claims against McMinn County as well as all his claims against

Sheriff Rogers. /d. Judge Edgar gave Cline’s attorneys no

notice that he intended to dismiss the latter claims. App. at 34a.

On October 3, 1994, Cline filed a timely Notice of Appeal.

Appellate jurisdiction was based on 28 U.S.C. § 1291. On June

25, 1996, the United States Court of Appeals for the Sixth

Circuit affirmed, holding that

(1) there is no constitutional right to privacy in one’s

criminal record (App. at 4a);

(2) Tennessee does not recognize a private cause of

action for violations of the Tennessee Constitution (App.

at Sa);

(3) there is no implied cause of action under 42

U.S.C. § 3789g for unwarranted disclosure of criminal

history information (App. at 1 1a);

(4) 42 U.S.C. § 1983 cannot be used to enforce rights

under 42 U.S.C. § 3789g because § 3789g does not provide

a privately enforceable federal right to nondisclosure of

criminal history information (App. at 16a); and

(5) it was not an abuse of discretion for the District

Court to dismiss Cline’s complaint without first hearing

oral argument (App. at 18a).

REASONS FOR GRANTING THE WRIT

There are several reasons for granting this writ. First, this

Court reserved the question whether an individual's privacy

rights in criminal history information collected in a government

data bank are constitutionally protected. See U.S. Dept. of

Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.

749, 762-763, 109S. Ct. 1468, 1476, 103 L. Ed. 2d 774 (1989).

Second, there is an apparent split among the courts of appeals

on the question whether misuse of information collected in

government data banks violates an individual’s constitutional

rights to privacy. This question was reserved in Whalen v. Roe,

429 U.S. 589, 605-606, 97 S. Ct. 869, 879-880, 51 L. Ed. 2d 64

(1977). Finally, this Court should grant the writ to correct

misapplications of the law, which to date have been made by

two courts of appeals.

The misuse of information collected in government data

bases is a national concern. Earlier this month, five former

White House employees brought a $90-million class-action

lawsuit in federal district court against Hillary Rodham

Clinton, the FBI, and others, claiming invasion of privacy in the

SS eT ey

alleged mishandling of FBI data files. Alexander v. FBI, No.

1:96 CV 02123(R)(C)(L) (D.C.D.C. filed September 12, 1996).

The issue is of equal importance to a citizen of McMinn County,

Tennessee, when the Sheriff uses his access to FBI data files to

assist private citizens for private use rather than for legitimate

law enforcement purposes.

Misuse of criminal justice information collected in

computer data bases has recently been the subject of

congressional inquiry. Government law enforcement agencies

collect and maintain detailed records about citizens, ostensibly

for state and national security and general law enforcement

purposes. Much of this information is deeply private and, if

exposed, could profoundly affect a person’s ability to hold a

job, earn a living, or, in general, be treated fairly under the law.

Although misuse is prohibited under federal law, the law is

rarely enforced.

AN INDIVIDUAL’S PRIVACY INTERESTS IN

CRIMINAL HISTORY INFORMATION STORED IN A

GOVERNMENT DATA BANK IS CONSTITUTIONALLY

PROTECTED.

Even though 42 U.S.C. § 3789g(c) states that it is

concerned about the “privacy and constitutional rights of

individuals,” the Sixth Circuit Court of Appeals held in this

case that there is no constitutional right to privacy in one’s

criminal record. App. at 4a.

Although the Supreme Court previously determined that

compiled criminal history information is private data, it

reserved the question whether such data is constitutionally

protected in U.S. Dept. of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749, 762-763, 109 S. Ct. 1468,

1476, 103 L. Ed. 2d 774 (1989).

In Reporters Committee, the Court was asked to decide

whether the Freedom of Information Act prevented the

disclosure of FBI rap sheets (information similar to that

disclosed in the instant case) to the press because disclosure

violated an individual’s right to privacy as envisioned by the

statute. While reserving the “question whether an individual’s

interest in privacy is protected by the Constitution” (id. at 762,

n. 13), the Court stated:

[T]he issue here is whether the compilation

of otherwise hard-to-obtain information

alters the privacy interests implicated by

disclosure of that information. Plainly there

is a vast difference between the public

records that might be found after a diligent

search of courthouse files, county archives,

and local police stations throughout the

country and a computerized summary

located in a single clearinghouse for

information.

Id. at 764. The Court went on to say:

When the subject of such a rap sheet is a

private citizen and when the information is

in the Government’s control as a

compilation ... the privacy interest... is

...atits apex. ... Accordingly, we hold as

a categorical matter that a third party’s

request for law enforcement records or

information about a private citizen can

reasonably be expected to invade that

“a i — —

citizen’s privacy, and that when the request

seeks ... merely records that the

Government happens to be storing, the

invasion of privacy is “unwarranted.”

Id. at 780.

Because Reporters Committee dealt with a statute rather

than a constitutional invasion of privacy, the Court declined to

decide the constitutional question. Nonetheless, the Court's

rationale implies that criminal history information in a

government data bank is constitutionally protected. Given that

the question is a significant one and the Court has reserved it,

the Court should grant the writ.

II.

MISUSE OF INFORMATION COLLECTED IN A

GOVERNMENT DATA BANK VIOLATES AN

INDIVIDUAL’S CONSTITUTIONALLY PROTECTED

PRIVACY INTERESTS.

Although criminal records stored in the NCIC data base are

protected by law from unwarranted disclosure, the Sixth Circuit

Court of Appeals held that Cline did not have a constitutional

right to privacy in his criminal record. App. at 4a. The Fifth

Circuit Court of Appeals, however, apparently would disagree.

In Fadjo v. Coon, the court held that Fadjo had a constitutional

right to privacy in information:he provided in a criminal

investigation; the information was revealed to others not

involved in the investigation. Fadjo v. Coon, 633 F.2d 1172,

1175 (Sth Cir. 1981). While the information released in Fadjo

was not “official information,” nevertheless, the court was

careful to distinguish the case from an earlier case, Tosh v.

Buddies Supermarkets, Inc., 482 F.2d 329 (5th Cir. 1973),

involving the release of an arrest record. The court noted that in

Tosh there was no constitutional violation “because the court

found a legitimate state purpose in the limited dissemination of

the information.” Fadjo, 633 F.2d at 1177. Thus if the release of

arrest records had not been for a legitimate state purpose in

Fadjo, the court apparently would have found a constitutional

violation.

To date, the Supreme Court has not decided the question

whether misuse of information in government data banks

violates an individual’s constitutionally protected privacy

interests. In Whalen v. Roe, however, the court reserved the

question while recognizing that in some cases there may be a

constitutional violation:

We are not unaware of the threat to privacy

implicit in the accumulation of vast amounts

of personal information in computerized

data banks or other massive government

files. The collection of taxes, the

distribution of welfare and social security

benefits, the supervision of public health,

the direction of our Armed Forces, and the

enforcement of the criminal laws all require

the orderly preservation of great quantities

of information, much of which is personal in

character and potentially embarrassing or

harmful if disclosed. The right to collect and

use such data for public purposes is typically

accompanied by a concomitant statutory or

regulatory duty to avoid unwarranted

disclosures. Recognizing that in some

circumstances that duty arguably has its

roots in the Constitution, nevertheless New

York’s statutory scheme, and its

implementing administrative procedures,

evidence a proper concern with, and

protection of, the individual’s interest in

privacy. We therefore need not, and do not,

decide any question which might be

presented by the unwarranted disclosure of

accumulated private data whether

intentional or unintentional or by a system

that did not contain comparable security

provisions.

Whalen v. Roe, 429 U.S. 589, 605-606, 97 S. Ct. 869, 879, 51 L.

Ed. 2d 64 (1977) (emphasis added).

Unlike the facts in Whalen, the facts in the instant case

clearly address the constitutional issue. The issue is

fundamental.

Moreover, each of the cases the Court of Appeals relied on

in reaching its holding in this case involved situations in which

there was a legitimate state interest in releasing the information

considered private. App. at 4a, citing Whalen v. Roe, Paul v.

Davis, 424 U.S. 693 (1976), Nixon v. Administrator, 433 U.S.

425 (1977), and J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981).

These cases are therefore clearly distinguishable. Since the

issue in the case at bar involves unwarranted disclosure of

protected information, this case should be addressed by this

Court.

Il.

42 U.S.C. §3789g, WHICH CONTROLS THE USE OF

CRIMINAL HISTORY INFORMATION, CREATES

ENFORCEABLE RIGHTS TO BE FREE FROM

UNWARRANTED DISCLOSURE OF SUCH

INFORMATION.

In his brief to the Sixth Circuit Court of Appeals, Cline

argued that certain subsections of 42 U.S.C. § 3789g clearly

create enforceable rights' and that when all subsections are read

together, they create enforceable rights to be free from

unwarranted disclosure of criminal history information.

Without addressing whether the statute as a whole creates

enforceable rights, the Court of Appeals held that § 3789g(b),

which addresses criminal history information specifically, was

the only applicable subsection in the instant case and that it does

not create enforceable rights. App. at 16a.

The Department of Justice regulations carrying out the

policy of § 3789g, however, state that an individual’s right to

privacy prohibits illegal access to “criminal history

information” and that governmental units are prohibited from

misusing such information. For instance, 28 C.F.R. § 20.1

States:

It is the purpose of these regulations to

assure that criminal history record

information wherever it appears is

collected, stored, and disseminated in a

1. In Polchowski v. Gorris, the Seventh Circuit Court of Appeals held

that because 42 U.S.C. § 3789g(a) seeks “to protect the privacy of aclass of

individuals from disclosure by any person,” it creates enforceable rights.

Polchowski, 714 F.2d 749, 752 (7th Cir. 1983).

manner to insure the completeness,

integrity, accuracy and security of such

information and to protect individual

privacy.

28 C.F.R. § 20.1 (July 1, 1994) (emphasis added). 28 C.F.R.

§ 20.21(c)(2) states:

No agency or individual shall confirm the

existence or nonexistence of criminal

history record information to any person or

agency that would not be eligible to receive

the information itself.

28 C.F.R. § 20.21(c)(2) (July 1, 1994). Thus, according to the

regulations, § 3789g protects “the privacy of a class of

individuals from disclosure by any person” and therefore,

according to Polchowski, creates enforceable rights.

Polchowski, 714 F.2d at 752.?

2. Courts have generally adopted a three-part test for determining

whether a statute creates enforceable rights:

(1) Was the provision in question intended to benefit the plaintiff?

(2) Does the statutory provision in question create binding obligations

on the defendant governmental unit, rather than merely expressing a

congressional preference? and

(3) Is the interest the plaintiff asserts specific enough to be enforced

judicially?

Wood v. Tompkins, 33 F.3d 600, 604 (6th Cir. 1994); Wilder v. Virginia Hosp.

Assoc., 496 U.S. 498, 509, 110 S. Ct. 2510, 2517, 110 L. Ed. 24 455 (1990).

Subsection 3789g(b) can easily satisfy this test. For example, § 3789g(b) was

clearly intended to benefit the plaintiff. § 3789g(b) states that “the Office of

(Cont'd)

When these regulations are taken into consideration with

the enforcement subsection § 3789g(d), which states that

“[a]ny person violating the provisions of this section, or of any

rule, regulation, or order issued thereunder, shall be” subject

“to any other penalty imposed by law,” they add up to the

conclusion that the Department of Justice would consider that

Cline has an enforceable right. See 42 U.S.C. § 3789g(d)

(emphasis added).’

This Court has held that while an enforcing agency’s

interpretation of a statute is ordinarily given important but not

(Cont'd)

Justice Programs shall assure that the security and privacy of all (criminal

history] information is adequately provided for and that information shall

only be used for law enforcement and criminal justice and other lawful

purposes.” 42 U.S.C. § 3789g(b) (emphasis added). Secondly, as the

language cited above shows, the governmental entities are clearly bound to

refrain from releasing private information. Note that in each case, Congress

used the verb “shall.” Cf. Wood v. Tompkins, 33 F.3d 600, 605 (6th Cir. 1994)

(the provision “is cast in mandatory rather than precatory terms”). Finally,

the individuals’ interests are stated specifically enough to be judicially

enforced. The enforcement provision, which is contained in § 3789g(d),

states that any person violating the provisions of this section “shall be fined

not to exceed $10,000, in addition to any other penalty imposed by law.” 42

U.S.C. § 3789g(d).

3. The Department of Justice’s interpretation should carry significant

weight with the courts. For example, in interpreting Title VII of the Civil

Rights Act of 1964 to determine whether that Act created a cause of action for

sexual harassment, the United States Supreme Court examined mere

guidelines issued by the Equal Employment Opportunity Commission

declaring that the Act created a cause of action for sexual harassment. The

Court noted: “As an ‘administrative interpretation of the Act by the

enforcing agency’ . . . these Guidelines, ‘while not controlling upon the

courts by reason of their authority, do constitute a body of experience to

which courts and litigants may properly resort for guidance’... .” Meritor

Savings Bank v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d

49 (1986) (citations omitted).

controlling significance, regulations have legislative effect

when Congress has entrusted the agency with the power to issue

the regulations. Batterton v. Francis, 432 U.S. 416, 425, 97S.

Ct. 2399, 2405, 53 L. Ed. 2d 448 (1977). Congress granted such

legislative power to the Department of Justice in the enactment

of § 3789g when it stated that “Any person violating the

provisions of this section, or of any rule, regulation, or order

issued thereunder, shall be fined not to exceed $10,000, in

addition to any other penalty imposed by law.” 42 U.S.C.

§ 3789g(d) (emphasis added).

Thus § 3789g does create enforceable rights “to protect

individual privacy” in “criminal history record information.”

28 C.F.R. § 20.1.

The Sixth Circuit Court of Appeals countered this

argument by stating that the regulations also provide: “Nothing

in these regulations prevents . . . [sic] acriminal justice agency

... from confirming prior criminal history record information

to members of the news media or any other person, upon

specific ‘nquiry as to whether a named individual was arrested,

detained, indicted, or whether an information or other formal

charge was filed... .” 28 C.F.R. § 20.20(c) (emphasis added in

the Court of Appeals’ opinion). The quote, however, was taken

out of context. The Court of Appeals left out the final critical

clause of the last sentence in the quote, which nullifies their

rationale. With the last clause added, the quote reads:

Nothing in these regulations prevents a

criminal justice agency . . . from confirming

prior criminal history record information to

members of the news media or any other

person, upon specific inquiry as to whether a

named individual was arrested, detained,

indicted, or whether an information or other

formal charge was filed, on a specific date, if

the arrest record information or criminal

record information disclosed is based on

data excluded by paragraph (b) of this

section.

28 C.F.R. § 20.20(c) (emphasis added). Thus the only prior

criminal history information that can be released to “any other

person” is criminal history information that is excluded under

paragraph (b), which includes:

(1) Posters, announcements, or lists for

identifying or apprehending fugitives or

wanted persons;

(2) Original records of entry such as police

blotters maintained by criminal justice

agencies, compiled chronologically and

required by law or long standing custom to

be made public, if such records are

organized on achronological basis;

(3) Court records of public judicial

proceedings;

(4) Published court or administrative

opinions or public judicial, administrative

or legislative proceedings;

(5) Records of traffic offenses maintained

by State departments of transportation,

motor vehicles or the equivalent thereof for

the purpose of regulating the issuance,

suspension, revocation, or renewal of

driver's, pilot's or other operators’ licenses;

(6) Announcements of executive clemency.

28 C.F.R. § 20.20(b).

Obviously, the items excluded under 28 C.F.R. § 20.20(b)

do not include criminal history information stored in the NCIC

data base. For information in the NCIC data base, the

prohibition is clear:

No agency or individual shall confirm the

existence or nonexistence of criminal

history record information to any person or

agency that would not be eligible to receive

the information itself.

28 C.F.R. § 20.21(c)(2).

Having misconstrued 28 C.F.R. § 20.20(c), the Court of

Appeals then sought to bolster its rationale by saying that

Congress provided an administrative remedy to redress

violations through the Privacy Act, 5 U.S.C. § 552a, and that

this remedy is further proof that Congress did not intend to

create enforceable rights. Add. at 13a. This is the same rationale

that the Seventh Circuit Court of Appeals used in Polchowski,

714 F.2d at 752, to justify not allowing private enforcement of

§ 3789. Both Courts of Appeals, however, have misapplied the

law because 28 C.F.R. 16.96(g) plainly states that NCIC records

are exempt from the civil remedies of the Privacy Act. No other

court of appeals has addressed this issue.

Thus, when all the subsections of § 3789g are read together,

and especially when they are read with the implementing

regulations, it is clear that § 3789g creates enforceable rights

for unwarranted disclosure of criminal history information.

IV.

INDIVIDUALS HAVE A CAUSE OF ACTION

UNDER 42 U.S.C. § 1983 FOR VIOLATIONS OF 42 U.S.C.

§3789g.

Having determined that there are no enforceable rights

available to Cline under 42 U.S.C. § 3789g, the Sixth Circuit

Court of Appeals then concluded that any cause of action he

might claim under 42 U.S.C. § 1983 must necessarily fail. App.

at 16a. As indicated in Argument III above, however, Cline does

have enforceable rights under § 3789g. Thus he should be able

to enforce his right under § 1983 provided Congress has not

foreclosed enforcement in the statute itself. Wright v. City of

Roanoke Redevelopment and Housing Authority, 479 U.S. 418,

423, 107 S. Ct. 766, 770, 93 L. Ed. 2d 781, 788 (1987).*

In determining whether Congress foreclosed enforcement

of a statute, courts must decide whether the statute provides a

comprehensive set of remedies. Middlesex County Sewage

Authority v. National Sea Clammers, 453 U.S. 1,20, 101 S. Ct.

2615, 2626, 69 L. Ed. 2d 435, 450-451 (1981). As shown in

Argument III above, both the Sixth and the Seven Circuit

Courts of Appeals state that the Privacy Act provides remedies

for unwarranted access to a person’s NCIC records. The

regulations to the Privacy Act, however, exempt NCIC records

from the civil remedies section of the Act. 28 C.F.R.

_ 4. This Court recognizes only two exceptions to the use of 42 U.S.C.

§ 1983 to enforce federal statutory violations: “[W]here Congress has

foreclosed such enforcement of the statute in the enactment itself and where

the statute did not create enforceable rights, privileges, or immunities within

the meaning of § 1983.” Wright v. City of Roanoke Redevelopment and

Housing Authority, 479 U.S. 418, 423, 107 S. Ct. 766, 770, 93 L. Ed. 24781

(1987). As Argument III above shows, the second exception does not apply

because § 3789g does create enforceable rights.

§ 16.96(g). Therefore, the Privacy Act cannot provide a

comprehensive remedy.

Because Cline has no other statutory remedies, Congress

obviously did not foreclose enforcement through a

comprehensive set of remedies. This Court, therefore, should

grant the writ and clarify the law for Cline’s benefit and the

benefit of other similarly situated individuals.

Vv.

42 U.S.C. §3789g CREATES AN IMPLIED CAUSE OF

ACTION FOR UNWARRANTED DISCLOSURE OF

CRIMINAL HISTORY INFORMATION.

If this Court determines, however, that Congress has

created a comprehensive set of remedies for violations of 42

U.S.C. § 3789g, Cline contends he still has an implied cause of

action under § 3789g for unwarranted disclosure of criminal

history information. The Sixth Circuit Court of Appeals held

that 42 U.S.C. § 3789g does not create an implied cause of

action, App. at 11a, but Cline respectfully disagrees.

InCort v. Ash, the Supreme Court set out a four-part test for

determining whether a statute has an implied cause of action:

First, is the plaintiff “one of the class for

whose especial benefit the statute was

enacted,” that is, does the statute create a

federal right in favor of the plaintiff?

Second, is there any indication of legislative

intent, explicit or implicit, either to create

such a remedy or to deny one? Third, is it

consistent with the underlying purposes of

the legislative scheme to imply such a

remedy for the plaintiff? And finally, is the

cause of actionone traditionally relegated to

State law, in an area basically the concern of

the States, so that it would be inappropriate

to infer a cause of action based solely on

federal law?

Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45

L. Ed. 2d 26, 36-37 (1975) (emphasis in the original) (citations

omitted).

As shown in Argument III above, 42 U.S.C. § 3789g

creates enforceable rights and therefore satisfies the first part of

the test. Second, Congress left open-ended the enforcement

provisions contained in § 3789g(d): persons violating the act

are subject to fine “in addition to any other penalty imposed by

law.” 42 U.S.C. § 3789g(d) (emphasis added). Thus an implied

cause of action certainly fits within the parameters of what

Congress would allow.

Third, § 3789g was established to protect criminal justice

information. Moreover, the statute is specifically concerned

about the “privacy and constitutional rights of individuals.” 42

U.S.C. § 3789g(c). See also, 28 C.F.R. § 20.1 (July 1, 1994).

Therefore, it is “consistent with the underlying purposes of the

legislative scheme to imply such a remedy for the plaintiff.”

Cort, 422 U.S. at 78.

Finally, Cort asks if the cause of action is “one traditionally

relegated to state law . . . ."/d. The answer here clearly is, no.

The NCIC information illegally accessed in the present case is

federal information and should appropriately be protected by

federal law.

Based on the foregoing, Cline asserts 42 U.S.C. § 3789g

meets the Cort test and therefore creates an implied cause of

action.

VI.

SUA SPONTE DISMISSAL IS IMPERMISSIBLE

WHEN THE PARTY BEING DISMISSED DID NOT

RECEIVE PRIOR NOTICE OF THE INTENTION OF

THE COURT TO DISMISS AND THE OPPORTUNITY

TO RESPOND PRIOR TO DISMISSAL.

McMinn County moved to dismiss only Cline’s 42 U.S.C.

§ 1983 claim for violation of 42 U.S.C. § 3789g. McMinn

County ignored Cline’s other claims. Without giving Cline

prior notice and an opportunity to respond, the U.S. District

Court judge dismissed not only the claim at issue, but also

dismissed sua sponte all other claims against McMinn County

as well as all claims against Sheriff Rogers. App. at 34a.

In affirming the District Court, the Court of Appeals said

that “it was not an abuse of the district court’s discretion to

dismiss the complaint under Rule 12(b)(6) without first hearing

oral argument.” (Emphasis added.) App. at 18a. The Court of

Appeals, however, misconstrued Cline’s argument. Cline was

not asking for the opportunity for “oral argument”; he was

asking to present full written arguments on those other issues

that his opponents had not asked to dismiss.

In Cline’s response to McMinn County’s Motion to Dismis

he noted that because McMinn County addressed only one

claim, Cline would respond to only that claim. He did not wish

to be disadvantaged in arguing his case on the other claims until

he had notice of Sheriff Rogers’ and McMinn County’s bases

for dismissal. Cline responded to only the claim raised and

waited to respond to the other claims until after McMinn

County supplemented its Motion to Dismiss or Sheriff Rogers

moved to dismiss. Cline should not be required to respond to

arguments not made or motions not filed. McMinn County

never supplemented its Motion, and Sheriff Rogers never filed

a Motion to Dismiss. As a result, Cline now finds himself in the

untenable position of never having had a chance to respond to

anyone, but nonetheless being out of court. Cf. Tingler v.

Marshall, 716 F.2d 1109, 1111 (6th Cir. 1983) (“Plaintiffs are

prejudiced by the procedure followed by the district court in

this case because, unlike with motions to dismiss filed by

defendants, they have no opportunity to amend their complaints

or make legal arguments against the dismissal”).

In Morrison v. Tomano, the Sixth Circuit Court of Appeals

held that in a sua sponte dismissal, the plaintiff must “be given

a chance to amend the complaint or respond to notice of an

impending dismissal for failure to state acclaim. See Conley v.

Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).”

Morrison v. Tomano, 755 F.2d 515, 517 (6th Cir. 1985). In the

case at bar, however, the Court of Appeals denied Cline this

right by saying simply that he was not entitled to oral argument.

In so doing, the Court of Appeals denied Cline his legitimate

rights.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Dated: September, 23, 1996.

Respectfully submitted,

JUDY PINKSTON McCARTHY

Counsel of Record

DENNIS MICHAEL McCARTHY

Attorneys for Petitioner

406 Union Avenue, Suite 500

P.O. Box 2142

Knoxville, Tennessee 37901-2142

(423) 525-0855

APPENDIX A — OPINION OF UNITED STATES

COURT OF APPEALS FOR THE SIXTH

CIRCUIT FILED JUNE 25, 1996

No. 94-6399

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JACKIE RAY CLINE,

Plaintiff-Appellant,

GEORGE W. ROGERS, individually and in his capacity as

Sheriff of McMinn County and McMinn County, Tennessee,

Defendants-Appellees.

On Appeal from United States District Court for the

Eastern District of Tennessee

Decided and Filed June 25, 1996

Before: MERRITT, Chief Judge; BATCHELDER, Circuit

Judge; DOWD, District Judge.*

ALICE M. BATCHELDER, Circuit Judge. The plaintiff-

appellant appeals from the district court’s judgment dismissing

with prejudice, pursuant to Fed. R Civ. P. 12(b)(6), all his claims

against both defendants in this case. For the reasons that follow,

we affirm.

* The Honorable David D. Dowd, Jr., United States District Judge for

the Northern District of Ohio, sitting by designation.

Appendix A

The plaintiff-appellant, Jackie Ray Cline (“Cline”),

alleges that in 1992, a private citizen contacted the Sheriff’s

Department of McMinn County, Tennessee (“the County”), and

asked Sheriff George Rogers to check Cline’s arrest record.

According to Cline, Rogers searched state and local records and

requested a computer search of National Crime Information

Center (“NCIC”) records of the Federal Bureau of Investigation

(“FBI”). Cline alleges that Rogers disclosed to the private

citizen the information Rogers obtained regarding Cline’s

criminal history, in violation of both Tennessee and federal law.

Cline filed this lawsuit against Rogers, individually and in

his official capacity as sheriff. Cline also named the County as

a defendant, alleging that improper searches of criminal records

is “a routine and customary practice in McMinn County,” that

the County “lacks adequate controls to ensure that access to

criminal records is for authorized purposes only,” that the

County did not have in place an adequate system to detect

misuse of criminal records, that the County had provided

inadequate training to prevent such abuse, and that the County

had “been indifferent to the civil rights of private citizens by

allowing such abuses to continue.”

Cline’s complaint sought damages under 42 U.S.C. § 1983

for violation of his federal civil rights. The complaint also

asserted an implied private right of action under 42 U.S.C.

§ 3789g. Finally, the complaint alleged“ violations of State and

federal common law rights toprivacy.” Rather than answering

the complaint, the defendantCounty filed its motion “to dismiss

the Complaint against it on the ground that the Complaint fails

to state a claim upon which relief can be granted against this

Appendix A

Defendant in that 42 U.S.C. § 3789(g) [sic] does not, as a matter

of law, provide a private right of action to [Cline] to be

maintained under 43 [sicj U.S.C. § 1983.”

The defendant Rogers answered the complaint. Rogers

apparently did not file a separate motion to dismiss. After

Cline’s counsel sought and received an extension of time to

respond to the County’s motion to dismiss the complaint, the

plaintiff filed a response. Following motions by Cline’s counsel

for a continuance, the district court ruled on the County’s

motion to dismiss the complaint. In its memorandum of

opinion, the court explained that all of Cline’s claims against

both Sheriff Rogers and the County were dismissed with

prejudice, pursuant to Fed. R. Civ. P. 12(b)(6), because Cline

“undoubtedly cannot prove any set of facts consistent with his

allegations which would entitle him to relief, i.e., the plaintiff is

not entitled to relief despite the facts as pleaded.” Further, the

court held thatsua sponte dismissal with respect to defendant

Rogers was appropriate pursuant to Rule 12(b)(6) and this

Court’s precedent, citing Morrison v. Tomano, 755 F.2d 515

(6th Cir. 1985). This timely appeal followed.

Il.

We reviewde novothe district court’s dismissal for failure

to state a claim upon which relief can be granted. Taxpayers

United for Assessment Cuts v. Austin, 994 F.2d 291, 296 (6th

Cir. 1993). The court must construe the complaint in the light

most favorable to the plaintiff, accept all factual allegations as

true, and determine whether the plaintiff undoubtedly can prove

no set of facts in support of his claims that would entitle him to

relief. Jn re DeLorean Motor Co.,991 F.2d 1236, 1240 (6th Cir.

1993).

Appendix A

A. The Federal Constitutional Claim

There is no violation of the United States Constitution in

this case because there is no constitutional right to privacy in

one’s criminal record. Nondisclosure of one’s criminal record

is not one of those personal rights that is “fundamental” or

“implicit in the concept of ordered liberty.” See Whaien v. Roe,

429 U.S. 589 (1977). In Whalen, the Supreme Court

distinguished fundamental privacy interests in “matters

relating to marriage, procreation, contraception, family

relationships, and child rearing and education” and “individual

interest in avoiding disclosure of personal matters,” see id. at

599, finding no general constitutional right to nondisclosure of

private data,see id. at 608-09 (Stewart, J., concurring).

Moreover, one’s criminal history is arguably not a private

“personal matter” at all, since arrest and conviction information

are matters of public record. See Paul v. Davis, 424 U.S. 693

(1976) (rejecting a similar claim based on facts more egregious

than those alleged here);see also J.P. v. DeSanti,653 F.2d 1080

(6th Cir. 1981) (interpreting Paul in light of subsequent

Supreme Court cases( Whalen and Nixon v. Administrator, 433

U.S. 425 (1977)) and holding that there is no general right toa

constitutional balancing of government action against

individual privacy absent personal rights that are

“fundamental” or “implicit in the concept of ordered liberty”).

Although there may be a dispute among the circuit courts

regarding the existence and extent of an individual privacy

right to nondisclosure of “personal matters”, see Slayton v.

Willingham, 726 F.2d 631 (10th Cir. 1984); Fadjo v. Coon, 633

F.2d 1172, 1176 (Sth Cir. Unit B 1081) (both opining thatPaul

has been at least partially overruled by the Supreme Court’s

decisions in Whalenand Nixon), this circuit does not recognize

Appendix A

a constitutional privacy interest in avoiding disclosure of,e. Su

one’s criminal record. See DeSanti,653 F.2d at 1090 (regarding

disclosure of juvenile delinquents’ “social histories”);see also

Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994) (disclosure of

inmate’s HIV infection did not violate constitutional right of

privacy).

Because there is no privacy interest in one’s criminal

record that is protected by the United States Constitution, Cline

could prove no set of facts that would entitle him to relief:

therefore, the district court correctly dismissed this claim.

B. State Constitutional Claim

The plaintiff can state no claim of a state constitutional

violation in this case because Tennessee does not recognize a

private cause of action for violations of the Tennessee

Constitution. See Lee v. Ladd, 834 S.W.2d 323 (Tenn. Ct.

App.), appeal denied, (Tenn. 1992). There, the Tennessee

Court of Appeals, searching for authority to support or refute

the plaintiff’s claim of an implied cause of action for violations

by a local police officer of her civil rights under the Tennessee

Constitution, stated:

We have held . ._. that we know of no

authority for the recovery of damages for a

violation of the Tennessee Constitution by a

state officer. See Bennett v. Horne, 1989 WL

86555 (No. 89-31-11, Tenn. Ct. App....

August 2, 1989). So far as we are able to

determine, the Tennessee courts have not

extended the rationale of Bivens [v. Six

Unknown Named Agents of the Federal

Appendix A

Bureau of Narcotics, 403 U.S. 388 (1971)]

to give a state cause of action against a police

officer for violating a person’s civil rights.

Lee, 834 S.W.2d at 325. Therefore, the district court properly

dismissed this claim.

C. Direct Claim for Violation of 42 U.S.C. § 3789g

The plaintiff claims that the defendants violated

enforceable privacy rights created in him by Congress under the

Justice System Improvement Act of 1979, 42 U.S.C. §§ 3701-

3797 (“the Act”). Specifically, Cline claims that the defendants

violated 42 U.S.C. § 3789g, which provides for confidentiality

of information under the Act. That section has four

subsections: § 3789g(a) prohibits the unauthorized

dissemination of research or statistical information;'

1. This subsection states:

Research or statistical information; immunity

from process; prohibition against admission as

evidence or use in any proceedings

Except as provided by Federal law other than this

chapter, no officer or employee of the Federal

Government, and no recipient of assistance under the

provisions of this chapter shall use or reveal any

research or statistical information furnished under

this chapter by any person and identifiable to any

specific private person for any purpose other than the

purpose for which it was obtained in accordance with

this chapter. Such information and copies thereof

(Cont'd)

Appendix A

§ 3789g(b) requires the Office of Justice Programs to safeguard

the accuracy and security of criminal history information;?

§ 3789g(c) requires thatcriminal intelligence information be

handled in conformity with policy standards prescribed by the

(Cont'd)

shall be immune from legal process, and shall not.

without the consent of the person furnishing such

information, be admitted as evidence or used for any

purpose in any action, suit, or other judicial,

legislative, or administrative proceedings.

42 U.S.C. § 3789g(a).

2. This subsection states:

Criminal history information; disposition and

arrest data; procedures for collection, storage,

dissemination, and current status; security and

privacy; availability for law enforcement,criminal

justice, and other lawful purposes; automated

systems: review, challenge, and correction of

information

All criminal history information collected,

stored, or disseminated through support under this

chapter shall contain, to the maximum extent feasible,

disposition as well as arrest data where arrest data is

included therein. The collection, storage, and

dissemination of such information shall take place

under procedures reasonably designed to insure that

all such information is kept current therein; the Office

of Justice Programs shall assure that the security and

privacy of all information is adequately provided for

and that information shall only be used for law

enforcement and criminal justice and other lawful

(Cont'd)

Appendix A

Office of Justice Programs;? § 3789g(d) states that “[a]ny

person violating the provisions of this section or of any rule,

regulation, or order issued thereunder, shall be fined not to

exceed $10,000, in addition to any other penalty imposed by

law.”

(Cont'd)

purposes. In addition, an individual who believes that

criminal history information concerning him

contained in an automated system is inaccurate,

incomplete, or maintained in violation of this chapter,

shall, upon satisfactory verification of his identity, be

entitled to review such information and to obtain a

copy of it for the purpose of challenge or correction.

42 U.S.C. § 3789g(b).

3. This subsection states:

Criminal intelligence systems and information;

prohibition against violation of privacy and

constitutional rights of individuals

All criminal intelligence systems operating

through support under this chapter shall collect,

maintain, and disseminate criminal intelligence

information in conformance with policy standards

which are prescribed by the Office of Justice

Programs and which are written to assure that the

funding and operation of these systems furthers the

purpose of this chapter and to assure that such

systems are not utilized in violation of the privacy and

constitutional rights of individuals.

42 U.S.C. § 3789g(c).

Appendix A

The district court correctly found that the only subsection

of § 3789g even arguably applicable in this case is § 3789g(b),

which addresses the confidentiality of criminal history

information. Subsection 3789g(a) is inapplicable because that

section deals with “research or statistical information.” That

term is not defined in the statute; however, the Department of

Justice regulations define the term to mean “any information

which is collected duringthe conduct of aresearch or statistical

project and which is intended to be utilized for research or

Statistical purposes.” 28 C.F.R. § 22.2(d). “Research or

Statistical project” is defined as “any program, project, or

component thereof which is supported in whole or in part with

funds appropriated under the Act and whose purpose is to

develop, measure, evaluate, or otherwise advance the state of

knowledge in a particular area.” 28 C.F.R. § 22.2(c). Cline’s

complaint does not allege that the information Sheriff Rogers

allegedly disclosed to a private citizen was information about

Cline that had been collected during a research or statistical

project supported with funds appropriated under the Act.

Subsection 3789g(a) is therefore inapplicable in this case.

Similarly, § 3789g(c) is inapplicable here, because that

subsection deals with “criminal intelligence systems and

information.” Those terms also are not defined in the statute but

are defined by the Justice Department’s regulations. “Criminal

intelligence system” means “the arrangements, equipment,

facilities, and procedures used for the receipt, storage,

interagency exchange or dissemination, and analysis of

criminal intelligence information.” 28 C.F.R. § 23.3(b)(1).

“Criminalintelligence information” is defined as

data which has been evaluated to determine that it:

10a

Appendix A

(i) Is relevant to the identification of

and the criminal activity engaged in by an

individual who or organization which is

reasonably suspected of involvement in

criminal activity, and

(ii) meets criminal intelligence system

submission criteria[.]

28 C.F.R. § 23.3(b)(3). “Criminal activity” includes, butis not

limited to, “loan sharking, drug trafficking, trafficking in stolen

property, gambling, extortion, smuggling, bribery, and

corruption of public officials[{.]” 28 C.F.R. § 23.2. The

complaint in this case does not allege facts to support a claim

that the defendants improperly disclosed “criminal intelligence

information” regarding the plaintiff; therefore, subsection (c)

of § 3789g is inapplicable.

What the plaintiff’s complaint does allege is that Sheriff

Rogers improperly disclosed Cline’s arrest record. Arrest

records fall under § 3789g(b), which addresses criminal history

information. The definitions section of the statute provides

that:

“criminal history information” includes

records and related data, contained in an

automated or manual criminal justice

informational system, compiled by law

enforcement agencies for the purpose of

identifying criminal offenders and alleged

offenders and maintaining as to such

SOARED LIEOARE HOMTOY PLT

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;

PO TN RO I EO ORT ED Ne

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lla

Appendix A

persons records of arrests, the nature and

disposition of criminal charges, sentencing,

confinement, rehabilitation, and release[.]

42 U.S.C. § 3791(a)(9). Although Cline alleges that the

defendants improperly disclosed information regarding his

arrest record, Cline may not maintain a private right of action

under § 3789g(b), because § 3789g(b) does not create a direct,

private right of action. See Polchowski v. Gorris, 714 F.2d 749,

751 (7th Cir. 1983). In addition, subsection (b) imposes no

obligations upon these defendants; rather, the subsection

mandates that the Office of Justice Programs, a federal agency,

“assure that the security and privacy of all information is

adequately provided for and that information shall only be used

for law enforcement and criminal justice and other lawful

purposes.” 42 U.S.C. § 3789g(b). The subsection does entitle

an individual to review and challenge inaccurate or incomplete

criminal history information concerning the individual;

however, Cline does not allege that the information regarding

his arrest record that the defendants allegedly disclosed was

inaccurate or incomplete. Even if that were the case, Cline’s

cause of action in that regard would be against the responsible

federal agency, not state or local authorities. See id.

Cline argues that he can bring a direct claim under 42

U.S.C. § 3789g(d), the penalty provision, because it makes

reference to “any rule, regulation, or order issued” under the

section, and the regulations of the Department of Justice

prohibit the misuse of criminal history information by anyone

having authorized access to such information. See 28 C.ER.

§ 20.21(c)(2) (“No agency or individual shall confirm the

12a

Appendix A

existence or nonexistence of criminal history record

information to any person or agency that would not be eligible

to receive the information itself.”). However, even if,

arguendo, the state and local authorities are considered an

“agency” within the meaning of the Act, the regulations also

provide: “Nothing in these regulations prevents . . . acriminal

justice agency ... from confirming prior criminal history

record information to members of the news mediaor any other

person, upon specific inquiry as to whether a named individual

was arrested, detained, indicted, or whether an information or

other formal charge was filed ....” 28 C.F.R. § 20.20(c)

(emphasis added). Again, it is noteworthy that Cline does not

allege that the information Sheriff Rogers allegedly disclosed

was incorrect.

Congressional intent is the touchstone of whether private

enforcement of a statute is permitted. Since the late 1970s,

Congress has been on notice that, if it intends to create a private

right of action, it had better do so expressly in the statute. The

Supreme Court, mindful of separation of powers concerns,

appears to have modified the four-part analysis of Cort v. Ash,

422 U.S. 66 (1975), upon which Cline relies, in favor of an

inquiry regarding congressional intent: Did Congress intend to

provide a private right of action under the statute, or did

Congress intend to foreclose private enforcement of the statute?

The Supreme Court has been increasingly reluctant to find an

implied cause of action where Congress had the opportunity to

create a private right explicitly but did not do so. See Cannon v.

University of Chicago,441 U.S. 677 (1979); Touche Ross & Co.

v. Redington, 442 U.S. 560 (1979). Accord Herman & MacLean

v. Huddleston, 459 U.S. 375 (1983) (private right of action

inferred because it had been consistently recognized for more

than 35 years); Merrill Lynch, Pierce, Fenner & Smith v.

13a

Appendix A

Curran, 456 U.S. 353 (1982) (private cause of action

recognized because fact that Congress had amended the statute

twice without speaking to the question led to compelling

inference that Congress intended to preserve implied private

remedy previously recognized).

In this case, the statute at issue was part of the Justice

System Improvement Act, Pub.L. 96-157, enacted December

27, 1979, at the end of the very year in which the Supreme Court

issued its decisions in Cannon and Touche Ross, cautioning

Congress that it must make explicit its intent to provide a

private right of action, else the courts would not imply one. Itis

an inescapable conclusion that Congress, enacting this statute

soon after having been so admonished, did not intend to create a

private right of action for violation of 42 U.S.C. § 3789g.

Indeed, the fact that Congress created a generalized

administrative scheme, complete with a penalty provision in

subsection (d) and the possibility of redress against federal

agencies through the Privacy Act, 5 U.S.C. § 552a, is further

proof of congressional intent not to create a private right of

enforcement of this statute. The district court properly

dismissed Cline’s direct claim under 42 U.S.C. § 3789g.

D. Claims Under 42 U.S.C. § 1983

In Maine v. Thiboutot, 448 U.S. 1, 4-6, 100 S. Ct. 2502

2504-05 (1980), the Supreme Court established a § 19834

4. Civil action for deprivation of rights:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

(Cont'd)

l4a

Appendix A

remedy for violations of a federal statute, see Suter v. Artist

M.,_. U.S._., __, 112 S.Ct. 1360, 1366 (1992) (citing

Thiboutot) but since then has held that no such remedy exists if

“(1) the statute does not create enforceable rights, privileges, or

immunities within the meaning of § 1983, or (2) Congress has

foreclosed such enforcement of the statute in the enactment

itself.” Wilder v. Virginia Hosp. Assn, 496 U.S. 498, 508, 110

S.Ct. 2510, 2517 (1990) (internal quotation marks and brackets

omitted) (quoting Wright v. Roanoke Redevelopment & Hous.

Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770 (1987)); Wright,

479 U.S. at 423, 107 S.Ct. at 770 (recognizing these two

exceptions) (citing Pennhurst State School & Hosp. v.

Halderman, 451 U.S. 1, 101 S. Ct. 1531 (1981); Middlesex

County Sewerage Auth. v. National Sea Clammers Assn, 453

U.S. 1, [19,] 101 S. Ct. 2615 [,2626] (1981) (declining to

consider whether the acts in question created rights, privileges

or immunities under § 1983 when Congress had foreclosed a

§ 1983 remedy under the acts)), quoted in Suter, __ U. S. at__

112 S.Ct. at 1366.°

(Cont'd)

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983 (emphasis added).

5. Reading only Suter could lead one to believe a § 1983 action is

unavailable as a remedy for a violation of a federal statute only “where

Congress has foreclosed such enforcement of the statute in the enactment

itself and where the statute did not create enforceable rights, privileges or

immunities[,}” __ U.S. at___ 112 S.Ct. at 1366 (emphasis added) (quoting

Wright), i.e., only where both conditions are met. Wilder, Wright, and

(Cont'd)

15a

Appendix A

To determine whether the first of these two exceptions

applies, the Court has developed a three part test:

(1) Was the provision in question intended

to benefit the plaintiff?

(2) Does the statutory provision in question

create binding obligations on the defendant

governmental unit, rather than merely

expressing congressional preference?

and (3) Is the interest the plaintiff asserts

specific enough to be enforced judicially,

rather than being “vague and amorphous”?

Wayne v. Village of Sebring, 36 F.3d 517, 529 (6th Cir. 1994)

(citing Wilder, 496 U.S. at 509, 110 S.Ct. at 2517),cert. denied,

__U.S.__115 S. Ct. 2000 (1995); Wood v. Thompkins, 33 F.3d

600, 604-05 (6th Cir. 1994) (citing Wilder); see also “Tony” L.

ex rel. Simpson v. Childers, 71 F.3d 1182, 1188 (6th Cir. 1995)

(citing Wilder), cert. denied, __U.S.__,__ §. Ct. ___ (1996);

Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir. 1994)

(citing Wilder), cert. denied, __U.S.__, 115 S. Ct. 1099 (1995)*®

(Cont'd)

Middlesex County reveal chat such a belief would be mistaken. The presence

of either exception does away with a § 1983 claim.

6. A plaintiff bears the burden of proving that the first exception does

not apply, while a defendant bears the burden of proving that the second

exception does apply. Wayne, 36 F.3d at 529 (citing Golden State Transit

Corp. v. City of Los Angeles,493 U.S. 103, 106, 107, 110 S.Ct. 444, 448, 449

(1989)); Wood, 33 F.3d at 605 (citing Golden State Transit).

l6a

Appendix A

When a statue imposes no direct obligations on the states, and

instead places “the onus of compliance with the statute’s

substantive provisions on the federal government,” there is no

§ 1983 claim.Audette v. Sullivan, 19 F.3d 254, 256-57 (6th Cir.

1994) (quoting Stowell v. Ives, 976 F.2d 65, 70 (1st Cir. 1992));

Clifton v. Schafer, 969 F.2d 278, 283-85 (7th Cir. 1992).

As explained supra, only subsection (b) of 42 U.S.C.

§ 3789g is potentially implicated by the allegations of this

plaintiff’s complaint, and that subsection imposescompliance

obligations only on a federal agency, not upon these defendants.

Further, the purpose of § 3789g(b) is to provide for the

maintenance and accuracy of criminal history information,

with a specific provision included entitling “an individual who

believes that criminal history information concerning him

contained in an automated system is inaccurate, incomplete, or

maintained in violation” of the statute “to review such

information and to obtain a copy of it for the purpose of

challenge or corrections.” 42 U.S.C. § 3789g(b). The only

privately enforceable right created by this subsection of the

Statute in an individual such as Cline is the right to receive a

copy of criminal history information maintained pursuanttothe ~

statute for his review and possible correction in the event of

erroneous information. Title 42 U.S.C. § 3789g does not

provide a privately-enforceable federal right to nondisclosure

of accurate criminal history information; therefore, Cline’s

§ 1983 claims fail. Rather than creating a federal right which

may be privately enforced either directly under the statute or

through an action under § 1983, Congress created an

administrative schemeintended to assure that criminal history

information, criminal intelligence information, and research

and statistical information be used only for the purposes for

which it was collected. The remedy for violations is provided

17a

Appendix A

by the statute itself,see42 U.S.C. § 3789g(d), and, with respect

to federal agencies, by the Privacy Act of 1974, 5 U.S.C.

§ 552a(a)(1). The provision of these remedies is further proof

that Congress intended to foreclose private enforcement of

§ 3789g. See Polchowski, 714 F.2d at 752. The district court

properly dismissed Cline’s § 1983 claims.

III.

Finally, Cline argues that the district court was too hasty in

dismissing his complaint because “[v]ery little discovery had

been undertaken at the time,” the district court assumed that

only subsection (b) of § 3789g applied in this case, and Cline

might have discovered that the defendants had actually violated

another subsection, or that “a contract existed between the

Defendants and the FBI — the agency that controls the NCIC

data base — and that he may have a cause of action under a

contract theory.” Of course, Cline’s complaint does not make

such allegations, and he appears to have made no effort to

amend it. Although “a complaint should not be dismissed for

failure to state aclaim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief,” see Conley v. Gibson, 355 U.S. 41,

45-46 (1957), it is “not proper to assume the [plaintiff could]

prove facts [he] had not alleged or that the defendants had

violated applicable laws in ways that had not been alleged.”

Associated Gen. Contractors v. California State Council of

Carpenters,459 U.S.519, 526 (1983); Quality Foods de Centro

America, S.A. v. Latin American Agribusiness Dev. Corp.,711

F.2d 989, 995 (11th Cir. 1983); Brennan v. Chestnut, 777 F.

Supp. 1469, 1472-73 (D. Minn. 1991), aff'd, 973 F.2d 644 (8th

Cir. 1992).

18a

Appendix A

Moreover, although Cline argues that the district court's

dismissal of his complaint was “premature” and that he should

have been afforded the benefit of oral argument on the motion to

dismiss, it was not an abuse of the district court’s discretion to

dismiss the complaint under Rule 12(b)(6) without first hearing

oral argument. See Mann v. Conlin, 22 F.3d 100, 103 (6th Cir.

1994); Fed. R. Civ. P. 78.

IV.

Because the plaintiff in this case can prove no set of facts,

consistent with his pleadings, that would entitle him to relief on

any of his claims, the district court did not err in dismissing with

prejudice the entire complaint against both defendants. The

district court’s judgment isAFFIRMED.

19a

APPENDIX B — ORDER AND JUDGMENT OF THE

UNITED STATES DISTRICT COURT, EASTERN

DISTRICT OF TENNESSEE AT CHATTANOOGA

FILED SEPTEMBER 12, 1994

1:93-cv-386

JACKIE RAY CLINE,

Plaintiff,

GEORGE W. ROGERS, INDIVIDUALLY and IN HIS

CAPACITY AS SHERIFF OF MCMINN COUNTY, and

MCMINN COUNTY,

Defendants.

ORDER AND JUDGMENT

In accordance with the accompanying memorandum, the

defendant McMinn County’s motion to dismiss (Court File No.

5) pursuant to Fed. Civ. P. 12(b)(6) is GRANTED, and all

claims in this action against McMinn County areDISMISSED

WITH PREJUDICE. Also for the reasons stated in the

accompanying memorandum, all claims in this action against

defendant George W. Rogers are DISMISSED WITH

PREJUDICE.Noclaims remain for adjudication in this action.

SO ORDERED.

ENTER:

s/ R. Allan Edgar

R. ALLAN EDGAR

UNITED STATES DISTRICT JUDGE

20a

Appendix B

Entered as a Judgment

this 12th day of Sept, 1994,

in Order Book 62, Page 90,

Pursuant to Rule 58, Fed. R. Civ. P.

R. MURRAY HAWKINS, CLERK

Bys/ Cyndee Helder

Deputy Clerk

2la

APPENDIX C — MEMORANDUM OF THE UNITED

STATES DISTRICT COURT, EASTERN DISTRICT

OF TENNESSEE AT CHATTANOOGA FILED

SEPTEMBER 12, 1994

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

1:93-cv-386

JACKIE RAY CLINE,

Plaintiff,

GEORGE W. ROGERS, INDIVIDUALLY and IN HIS

CAPACITY AS SHERIFF OF MCMINN COUNTY, and

MCMINN COUNTY,

Defendants.

MEMORANDUM

This action involves a county sheriff’s disclosure of

criminal history information about the plaintiff. The plaintiff

asserts claims under the U.S. Constitution, 42 U.S.C. § 3789g,

42 U.S.C. § 1983, and the Tennessee Constitution. Before the

Court is defendant McMinn County’s motion to dismiss

pursuant to Fed. R. Civ. P. 12b(6). for the reasons that follow,

McMinn County’s motion will bbGRANTED.

22a

Appendix C

I. Facts.

In late 1992, a private citizen went to the McMinn County

sheriff’s Department and asked the sheriff, defendant George

Rogers, to check the criminal record of the plaintiff, Jackie Ray

Cline. Rogers allegedly searched state and local records and

requested a computer search of Federal Bureau of Investigation

records. According to Cline, Rogers disclosed the information

he obtained on Cline to the inquiring citizen. Incomplying with

the request for information on Cline, Rogers purportedly

violated Tennessee Bureau of Investigation rules regarding

disclosure of criminal record information.

In this action Cline asserts five claims against Rogers and

McMinn County: (1) a claim under 42 U.S.C. § 1983 for

violation of 42 U.S.C. § 3789g, (2) aclaim under 42 U.S.C.

§ 3789g for violation of the same, (3) aclaim under 42 U.S.C.

§ 1983 for violation of his constitutional right of privacy, (4) a

claim directly under the Constitution for violation of his right of

privacy, and (5) a claim for violation of his right of privacy

under the Tennessee Constitution. McMinn County moves the

Court to dismiss the plaintiff’s claims against it for failure to

state a claim upon which relief can be granted pursuant to Fed.

R. Civ. P. 12b(6).

II. Standard of Review

In considering a Fed. R. Civ. P. 12(b)(6) motion, the Court

regards all well-pleaded allegations in the complaint as true,

construing them in favor of the plaintiff. Scheuer v. Rhodes,416

U.S. 232, 236 (1974); Jones v. City of Carlisle, Ky.,3 F.3d 945,

947 (6th Cir. 1993), cert. denied, 114S. Ct. 1218 (1994);Song v.

City of Elyria, Ohio, 985 F.2d 840, 843 (6th Cir. 1993);Collins

23a

Appendix C

v. Nagle, 892 F.2d 489, 493 (6th Cir. 1989). Dismissal of a

complaint under Fed. R. Civ. P. 12b(6) for failure to state a

claim is warranted only when the plaintiff undoubtedly cannot

prove any set of facts consistent with his allegations which

would entitle him to some relief, i.e., the plaintiff is not entitled

to relief despite the facts as pleaded. Haines v. Kerner, 404 U.S.

519, 520-21 (1972); Conley v. Gibson, 355 U.S. 41, 45-46

(1957);Collins, 892 F.2d at 493.

Ill. Analysis

A. Section 1983 claim for violation of 42 U.S.C. § 3789g

Under 42 U.S.C. § 1983, a private cause of action exists for

“the deprivation of any rights, privileges or immunities secured

by the Constitution and laws [of the United States]}.” 42 U.S.C.

§ 1983. In Maine v. Thiboutot, 448 U.S. 1 (1980), the U.S.

Supreme Court determined that § 1983 provides a private cause

of action for violations of federal statutes as well as the

Constitution. Thiboutot, 448 U.S. at 4. In decisions subsequent

to Thiboutot, the Supreme Court has determined that two

exceptions exist to this rule. A Plaintiff alleging a violation of a

federal statute may enforce the statute under § 1983 unless: (1)

“ ‘the statute [does] not create enforceable rights, privileges, or

immunities within the meaning of § 1983,’ ", or (2) when

“*Congress has foreclosed such enforcement ... in the

enactment itself.’ ” Wilder v. Virginia Hosp. Ass'n, 496 U.S.

498, 508 (1990) (quoting Wright v. Roanoke Redevelopment

and Housing Authority, 479 U.S. 418 (1987));see Golden State

Transit Corp. v. City of Los Angeles,493 U.S. 103, 106 (1989);

Wood v.Tompkins, __ F.3d ___, No. 93-3684, 1994 WL 462382,

at *3 (6th Cir. Aug. 29, 1994); Audette v. Sullivan, 19 F.3d 254,

256 (6th Cir. 1994).

24a

Appendix C

To determine whether a provision creates an “enforceable

right” under the first exception, the Court must apply a three-

part test. The Court must ask (1) whether the provision “ ‘was

intend[ed] to benefit the putative plaintiff.’ ” Wilder, 496 U.S.

509 (quoting Golden State, 493 U.S. at 106)). If answered in the

affirmative, the provision creates an enforceable right unless

(2) “it reflects merely a ‘congressional preference’ for a certain

kind of conduct rather than a binding obligation on the

governmental unit,” id. (quoting Pennhurst State Sch. and

Hosp. v. Halderman, 451 U.S. 1, 19(1981)), or unless (3) “the

interest the plaintiff asserts is ‘too vague and amorphous’ such

that it is ‘beyond the competence of the judiciary toenforce.” ”

Id. (quoting Golden State, 493 U.S. at 106) (some internal

quotations omitted);see Wood, 1994 WL 462382, at *3 (setting

forth three-part test). The plaintiff bears the burden of proof

under this exception.Golden State,493 U.S. at 106; Wood, 1994

WL 462382, at *3.

With respect to the second exception, Congress may

foreclose enforcement under § 1983 by “providing a

comprehensive enforcement mechanism for protection of a

federal right.” Golden State, 493 U.S. at 106 (internal

quotations omitted); see Wood, 1994 WL 462382, at *3. That

the statute merely makes available administrative protections is

not sufficient. Golden State, 493 U.S. at 106; Wood, 1994 WL

462382, at *3. Instead, the “statutory framework must be such

that allowing a plaintiff to bring a § 1983 action would be

inconsistent with Congress’ carefully tailored scheme.”

Golden State, 493 U.S. at 107 (internal quotations omitted).

The defendant bears the burden of proof under this exception.

Id.; Wood, 1994 WL 462382, at *3.

At issue in this case is whether the plaintiff may bring a

cause of action under § 1983 fora violation 42 U.S.C. § 3789g.

25a

Appendix C

Before making this determination, however, the Court must

determine which subsection of § 3789g that the plaintiff claims

the defendants violated. The plaintiff does not make this clear in

his complaint. This determination is important because the

Supreme Court has instructed that “each statute must be

interpreted by its own terms” in determining whether the statute

gives rise to aright enforceable under § 1983.Suter v. Artist M.,

—_U.S. __, 112 S. Ct. 1360, 1367 n.8, 118 L. Ed. 2d 1, 13 n.8

(1992); see Wood, 1994 WL 462382, at *9 (considering

subsections of 42 U.S.C. 1396n(c)(2) separately and

concluding that some subsections give rise to enforceable

rights under § 1983 while others do not).

Section 3789g generally addresses the confidentiality of

information disseminated pursuant to the Justice System

Improvement Act, Pub. L. No. 96-157, 93 Stat. 1167 (1979),

which amended the Omnibus Crime Control and Safe Streets

Act of 1968, 42 U.S.C. §§ 3701-3797 (collectively, “the Act”).

Subsection (a) of section 3789g prohibits officers or employees

of the Federal Government or recipients of assistance under the

Act from revealing, for any purpose other than for which it was

obtained under the Act, “research and statistical information”

that is identifiable to any specific person. Jd. § 3789g(a).

Subsection (b) concerns “criminal history information” and

provides that “the Office of Justice Programs shall assure that

the security and privacy of all information is adequately

provided for and that information shall only be used for law

enforcement and criminal justice and other lawful purposes.”

Id. § 3789g(b). Finally, subsection (c) concerns “criminal

intelligence systems and information” and provides that all

criminal intelligence systems operating under the Act shall

operate in conformance with policy standards which, among

other things, assure that the “systems are not utilized in

26a

Appendix C

violation of the privacy and constitutional rights of

individuals.” Jd. § 3789g(c).

“Criminal history information” is defined under the Act as

including “records and related data, contained in an automated

or manual criminal justice informational system, compiled by

law enforcement agencies for the purpose of identifying

criminal offenders and alleged offenders and maintaining as to

such persons records of arrests, the nature and disposition of

criminal charges, sentencing, confinement rehabilitation and

release.” Jd. § 3791(a)(9). “Research or statistical information”

and “criminal intelligence systems and information” are not

defined under the Act. Department of Justice regulations,

promulgated in part under the Act, however, do define or clarify

the terms.

Under Department of Justice regulations, “research or

statistical information” is defined as “any information which is

collected during the conduct of a research or statistical project

and which is intended to be utilized for research or statistical

purposes.” 28 C.F.R. § 22.2(d) (1993). The term “research or

Statistical project” means “any program, project, or component

thereof which is supported in whole or in part with funds

appropriated under the Act and whose purpose is to develop,

measure, evaluate, or otherwise advance the state of knowledge

in a particular area.”/d. §22.2(c).

The Department of Justice regulations define criminal

“intelligence systems” as “the arrangement([,] equipment,

facilities, and procedures used for the continuing storage,

exchange and analysis of criminal intelligence data.” /d.

§ 23.3(b). Although the Department of Justice regulations do

not define “criminal intelligence information,” they do clarify

27a

Appendix C

the term by explaining that it refers to ongoing criminalactivity

typically related to such crimes as loan sharking, narcotics,

trafficking in stolen property, gambling, extortion, smuggling,

bribery, and corruption of public officials./d. § 23.2.

After reviewing the record and applicable law, the Court

concludes that the only subsection of 3789g arguably

applicable in present case is subsection (b), the subsection that

addresses the confidentiality of criminal history information.

The plaintiff alleges in his complaint that a private citizen

requested that defendant Rogers conduct a search to find out if

the plaintiff had ever been arrested. Rogers allegedly conducted

the search and disclosed to the citizen the plaintiff’s criminal

record. A search of a person’s arrest records is consistent witha

search of aperson’s “criminal history.” Indeed, the definition of

“criminal history information” includes “records of arrests[ ]

and the nature and disposition of criminal charges.” 42 U.S.C.

§ 3791(a)(9). The plaintiff does not allege in this case that the

private citizen and Rogers were collecting information

pursuant to a research or statistical project and intended to

utilize the information for research or statistical purposes, as

contemplated under § 3789g(a). Nor does the plaintiff allege

that Rogers provided “criminal intelligence information”

pertaining to some alleged criminal activity by the plaintiff, as

contemplated under § 3789g(c). For these reasons, therefore,

the plaintiff could only claim in this action that the defendants

violated the “criminal history information” provision of

§ 3789g(b).

Whether § 1983 accords a private cause of action to

plaintiffs alleging a violation of § 3789g(b) is not a question of

first impression. InPolchowski v. Gorris,714 F.2d 749 (7th Cir.

1983), acase in which the defendant allegedly revealed “certain

28a

Appendix C

statisticalandcriminal history information about the plaintiff,

the U.S. Court of Appeals for the Seventh Circuit determined

that § 1983 does not accord a private cause of action for

violations of § 3789g(b) or § 3789g(a). With respect to

subsection (b), the court concluded that the subsection does not

create an enforceable right. The court reasoned that the

subsection is administrative in nature in that it imposes

obligations on a federal actor to assure that the information is

only used for the purposes for which it was collected.

Polchowski, 714 F.2d at 751. With respect to subsection (a), the

court concluded that the subsection does create an enforceable

right but is not actionable under § 1983 because Congress had

foreclosed such an action by creating a comprehensive remedial

scheme under the Privacy Act of 1974, 5 U.S.C. 552a, a statute

separate from § 3789g./d. at 1752.

Although this Court need not determine, for reasons

already discussed, whether the Seventh Circuit reached the

correct result with regard to § 3789g(a), the Court reaches the

same result as the Seventh Circuit with regard to § 3789g(b). As

previously noted, a statute does not confer an enforceable right

if itreflects merely a congressional preference for a certain kind

of conduct rather than a binding obligation on the defendant

governmental unit. Wilder, 496 U.S. at 509; Woods, 1994 WL

562382, at *3. The defendant governmental unit in this case —

McMinn County — has no binding obligations under

§ 3789g(b). Section 3789g(b) only imposes obligations on the

Office of Justice Programs, which is a branch of the U.S.

Department of Justice. 42 U.S.C. §§ 3711, 3789g(b). The Sixth

Circuit has made clear that a plaintiff has no § 1983 right of

action against a state actor for the violation of a federal statute

where the statute is essentially administrative in nature and

imposes an obligation exclusively upon federal, not state,

29a

Appendix C

actors. Woods, 1994 WL 462382, at *7;Audette v. Sullivan, 19

F.3d 254, 257 (6th Cir. 1994). Whether a state or federal actor

has an obligation under a statute depends upon whom the statute

places the “onus of compliance.” Woods, 1994 WL 462382, at

*7; Audette, 19 F.3d at 256-57. In this case, the onus of

compliance with § 3789g(b) clearly falls on the Office of

Justice Programs. See 42 U.S.C. § 3789g(b) (“[T]he Office of

Justice Programs shall assure that the security and privacy of all

information is adequately provided for. . . .”). Because the onus

of compliance falls on a federal, rather than state, actor,

§ 3789g(b) cannot confer a right enforceable under § 1983.

Furthermore, the Court agrees with the Seventh Circuit that

§ 3789g(b) is essentially administrative in nature. Although the

subsection does provide that the “Office of Justice Programs

shall assure the security and privacy of all information is

adequately provided for,” the subsection does not entitle

individuals to privacy rights with respect to their criminal

history, nor does it referenceindividuals ’ privacy interests. The

subsection, therefore, may be fairly read to impose only a

generalized duty on the Office of Justice Programs, rather than

create a private, enforceable right.See Suter, __ U.S. at__, 112

S.Ct. at 1370, 118 L. Ed. 2d at 16 (concluding that language in

statute requiring a state to have a plan providing that

“reasonable efforts” will be made to prevent or eliminate the

need for removing a child from his home imposes only a

generalized duty upon the state rather than creates an

enforceable right).

Finally, it is worthy of noting that § 3789g(d) sets forth

penalties for persons who violate § 3789g. This subsection

provides that “[a]ny person violating the provisions of this

section, or any rule, regulation, or order issued thereunder, shall

30a

Appendix C

be fined not to exceed $10,000, in addition to any other penalty

imposed by law.” Jd. § 3789g(d). Although this subsection may

not amount to a comprehensive enforcement mechanism that

conclusively evidences congressional intent to foreclose a

§ 1983 cause of action for a violation of § 3789g, it does show

that the absence of a § 1983 cause of action for a violation of the

section does not render the section a dead letter. See Suter, __

U.S. at__, 112 S. Ct. at 1368-69, 118 L. Ed. 2d at 14 (observing

that 42 U.S.C. § 671(a)(15) is not a dead letter without a private

cause of action under § 1983 in light of certain statutory

provisions enabling the Secretary of Health and Human

Services to take actions against states).

For all of the foregoing reasons, therefore, the Court

concludes that § 1983 does not accord the plaintiff a private

cause of action for a violation of § 3789g(b). His § 3789g claim

brought pursuant to § 1983 will therefore beDISMISSED.

B. Claim Directly Under § 3789g

For similar reasons, plaintiff’s claim directly under

§ 3789g(b) will also beDISMISSED. To prove the existence of

an implied cause of action under a statute, the plaintiff must

prove that congress intended to make a private remedy

available to enforce the provisions of the statute.Suter,__ U.S.

at__,112S.Ct.at__, 118 L. Ed. 2d at 16;see Smith v. Dearborn

Fin. Servs., Inc.,982 F.2d 976, 980 (6th Cir. 1993) (noting that

congressional intent is the dispositive factor in determining

whether a private cause of action is implicit in a statute); see

also Cort v. Ashe, 422 U.S. 66, 78 (1975) (setting forth familiar

four-part test). As this Court has already determined,

§ 3789g(b) does not create an enforceable right for the plaintiff

in part because it only imposes a generalized duty upon the

3la

Appendix C

Office of Justice Programs. Additionally, § 3789g provides its

own enforcement mechanism by way of the penalties that may

be imposed under § 3789g(d). In light of these statutory

provisions, the Court concludes that Congress did not intend to

enforce § 3789g(b) by way of private rights of action.Cf. Suter,

__U.S. at __, 112 S. Ct. at 1370, 118 L. Ed. 2d at 16 (“Having

concluded that § 671(a)(15) does not create a federal

enforceable right. . . under § 1983, the [implied right of action

claim] may be disposed of quickly”).

C. Constitutional Claim

The plaintiff also claims that his constitutional right of

privacy was violated by the disclosure of his criminal history

information. The plaintiff brings this claim both directly under

the Constitution and pursuant to § 1983.

The plaintiff’s claim is without merit. In the case of J.P. v.

DeSanti, 653 F.2d 1080 (6th Cir. 1981), the U.S. Court of

Appeals for the Sixth Circuit determined whether the

dissemination of juvenile deliquents’ “social histories”

violated the juveniles’ constitutional rights of privacy. The

Sixth Circuit acknowledged that the Supreme Court had made

“isolated statements” in Whalen v. Roe, 429 U.S. 589 (1977)

and Nixon v. Administrator of General Servs., 433 U.S. 425

(1977) that, when read out of context, lent support to the

juveniles’ claim, but the Sixth Circuit ultimately held that “the

Constitution does not encompass a general right to

nondisclosure of private information.” DeSanti, 653 F.2d at

1090.

In the recent case of Doe v. Wigginton, 21 F.3d 733 (6th Cir.

1994), the Sixth Circuit confronted the issue of whether the

32a

Appendix C

disclosure of an inmate’s HIV infection violated the inmate’s

constitutional right of privacy. The Sixth Circuit followed

DeSanti and held that the inmate’s constitutional right of

privacy was not violated by the disclosure. Wingginton, 21 F.3d

at 740. The Court found that the inmate’s privacy interest in his

HIV infection was indistinguishable from the juveniles’

privacy interest in their social histories./d.

This Court concludes thatDeSantiand Wingginton control

the present case. The plaintiff’s privacy interest in his criminal

background is no greater than the inmate’s privacy interest in

his HIV infection or the juveniles’ privacy interest in their

social histories. Accordingly, plaintiff’s claim his

constitutional right of privacy was violated will be

DISMISSED.

Because the Court makes this determinations based on the

substantive constitutional right of privacy, it matters not

whether plaintiff brings his claim directly under the

Constitution or pursuant to § 1983. The result is the same under

either approach. His claim directly under the Constitution,

therefore, will also bebDISMISSED.

D. Tennessee Constitutional Claim

The plaintiff also claims that the disclosure of his criminal

background violates the Tennessee Constitution. Tennessee

courts, however, do not recognize a private cause of action to

recover damages for violations of the state constitution.See Lee

v. Ladd, 834 S.W.2d 323,325 (Tenn. Ct. App. 1992) (“We have

held ... in prior cases that we know of no authority for the

recovery of damages for a violation of the Tennessee

Constitution by a state officer.”);see also Bennett v. Horne, No.

33a

Appendix C

89-31-II, 1989 WL 86555, at *2 (Tenn. Ct. App. Aug. 2, 1989)

(“This court knows of no authority for the recovery of damages

for a violation of article I, section 7 of the Tennessee

Constitution.”). Accordingly, the plaintiff’s claim under the

state constitution will bbDISMISSED.

IV. Conclusion

For the foregoing reasons, defendant McMinn County’s

motion to dismiss pursuant to Fed. R. Civ. P. 12(b) will be

GRANTED.

Although only defendant McMinn County moves for

dismissal of this action, the Court raises the motionsua sponte

with respect to the other defendant, Sheriff Rogers. A court may

raise a Rule 12(b)(6) motionsua sponte when the court:

“(1) allow[s] service of the complaint upon

the defendant; (2) notifi[ies] all parties of its

intent to dismiss the complaint; (3) give[s]

the plaintiff a chance to either amend his

complaint or respond to the reasons stated

by the district court in its notice of intended

sua spontedismissal; (4) give the defendant

a chance to respond or file an answer or

motions; and (5) if the claim is dismissed,

state it reasons for dismissal.”

Morrison v. Romano, 755 F.2d 515,516 (6th Cir. 1985) (quoting

Tingler v. Marshall,716 F.2d 1109, 1112 (6th Cir. 1983)). Asua

spontedismissal under Rule 12(b)(6) is not necessarily invalid

because of a lack of service on the defendant or a failure to

provide the defendant an opportunity torespond./d.at517.

34a

Appendix C

In this case, the requirements of Tomanoare met. Although

the Court did not notify the plaintiff of its intent to dismiss the

complaint with respect to defendant Rogers, McMinn County’s

motion to dismiss put the plaintiff on notice that his complaint

was subject to complete dismissal.' This is especially true

considering that the plaintiff brings the same claims against

both defendants in this action and that he sues Rogers, in part, in

his official capacity as Sheriff of McMinn County. A suit

against Rogers in his official capacity is indistinguishable from

a suit against the county itself. Furthermore, in light of McMinn

County’s motion, the plaintiff has had an adequate opportunity

to amend or respond to McMinn County’s proferred reasons for

dismissal. Although it is apparent that defendant Rogers will

not have an opportunity to respond to the Court's intended

dismissal, the Court is satisfied, in accordance with Tomano,

that Rogers will not be unduly prejudiced by the dismissal.

Thus, for the same reasons that the Court concludes that the

plaintiff's claims against McMinn County will be

DISMISSED, the Court also concludes that plaintiff's claims

against Rogers will be DISMISSED.

An order will enter.

s/ R. Allan Edgar

R. ALLAN EDGAR

UNITED STATES DISTRICT JUDGE

1. Although McMinn County only argued in support of its motion that

the plaintiff was not entitled to recover on his claim that McMinn County had

violated 42 U.S.C. § 3789g, the motion put the plaintiff on notice that his

other claims against McMinn County were subject to dismissal. Indeed,

McMinn County moved that the Court dismiss the plaintiff's “complaint.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.