V. Stevens Kite v. Clarence M. Kelley, Director, Federal Bureau of Investigation, 546 F.2d 334, 10th Cir. (1976)
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Scribd Government DocsV. Stevens Kite v. Clarence M. Kelley, Director, Federal Bureau of Investigation, 546 F.2d 334, 10th Cir. (1976)
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Scribd Government Docs546 F.
2d 334
V. Stevens KITE, Plaintiff-Appellant,
v.
Clarence M. KELLEY, Director, Federal Bureau of
Investigation, et al., Defendants-Appellees.
No. 75-1811.
United States Court of Appeals,
Tenth Circuit.
Nov. 29, 1976.
Argued and Submitted Sept. 24, 1976.
Decided Nov. 29, 1976.
Jerome S. Malman, Denver, Colo., for plaintiff-appellant.
Jerre W. Dixon, Denver, Colo. (James L. Treece, U. S. Atty., Gary M.
Jackson, Asst. U. S. Atty., Richard L. Thornburgh, Asst. Atty. Gen.,
Denver, Colo., George W. Calhoun and David H. White, Dept. of Justice,
Washington, D. C., on the brief), for defendants-appellees.
Before SETH, BREITENSTEIN and HOLLOWAY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
This is an action against various federal officials wherein plaintiff-appellant
Kite claims that agents of the Federal Bureau of Investigation violated certain
of his constitutional rights by giving his employer information relating to his
arrest record. Jurisdiction is asserted under 28 U.S.C. 1331 and 1343. The
district court directed a verdict in favor of the defendants on questions of
liability and damage. We affirm.
Plaintiff was a member of certain radical groups while a student at the
University of Oregon. He moved to Denver, Colorado, and in 1971 secured
employment with Samsonite Corporation. In October, 1971, the Denver Office
of the FBI was requested by another FBI office to investigate Kite's activities in
Colorado. FBI agent Fore obtained information from Samsonite regarding
plaintiff's employment.
In May, 1972, FBI agent Adsit received from Samsonite a request for
assistance in its investigation of plaintiff. Adsit, in violation of FBI regulations,
told Samsonite that plaintiff had been arrested in Oregon. Samsonite later
discharged plaintiff for having made false statements in his employment
application. These statements related to his arrest record and to his education.
Samsonite furnished agent Adsit with its security file on plaintiff.
Plaintiff later secured a job at Cutler-Hammer, Inc. FBI agent Hamilton made
inquiry about plaintiff at Cutler-Hammer. Plaintiff voluntarily left his job there
when he was assigned to a night shift. Plaintiff then went to work for Stanley
Aviation Corporation. Again, inquiry about plaintiff was made by FBI agent
Hamilton. Stanley Aviation discharged plaintiff because of a false statement on
his employment application.
Plaintiff's complaint alleges that the FBI harassed, investigated, and intimidated
him in violation of rights guaranteed by the First, Fourth, Fifth and Ninth
Amendments to the United States Constitution.
Plaintiff sued Saxbe as Attorney General of the United States, and Kelley as the
Director of the Federal Bureau of Investigation, in their official capacities. Levi,
the present Attorney General, was substituted for Saxbe. Defendant Newpher
was Special Agent in Charge, SAC, of the Denver FBI office at the time when
agents Fore and Adsit were investigating plaintiff. Defendant Giovanetti was
the SAC when agent Hamilton made his investigations. Agents Fore, Adsit, and
Hamilton were not joined as defendants. Plaintiff named Samsonite, CutlerHammer, and Stanley Aviation as defendants. They were each dismissed on
motion and are not parties to this appeal.
Neither Fore nor Hamilton made any disclosure of plaintiff's activities or
record. The plaintiff's case rests on the disclosure by agent Adsit to a
Samsonite security officer of plaintiff's Oregon arrest. The question is whether
the defendants, officers superior to Adsit, may be held monetarily liable for the
misconduct of their subordinate Adsit.
At the close of the plaintiff's case, the district court directed a verdict in the
favor of the defendants on the question of monetary liability. The court ordered
that documents provided by Samsonite to the FBI be expunged from the FBI
files and enjoined all defendants from disseminating, disclosing, or publishing
information concerning the plaintiff except as authorized by federal statute or
executive order or by a court of competent jurisdiction. The Samsonite
documents were expunged. No appeal has been taken from the injunctive
provisions of the order. Our concern is with the grant of the motion for a
directed verdict on the question of monetary liability. The evidence must be
considered in the light most favorable to the party opposing the motion and,
when so taken, must be such as would require the trial court to set aside a
verdict for the opposing party. Toland v. Technicolor, Inc., 10 Cir., 467 F.2d
1045, 1046-1047 and cases there cited.
9
The applicability of respondeat superior to civil rights cases has produced much
contrariety in the federal courts. A number of circuits have found the doctrine
inapplicable to civil rights cases. See Sebastian v. United States, 8 Cir., 531
F.2d 900, 904 (action under 1983, 1985, and 1986); Adams v. Pate, 7 Cir.,
445 F.2d 105, 107 n. 2 (action under 1983 and 1985); Williams v. Vincent, 2
Cir., 508 F.2d 541, 546 (action under 1981, 1983, and 1985); and Dunham v.
Crosby, 1 Cir., 435 F.2d 1177, 1179-1180 (action under 1983).
10
Decisions holding that respondeat superior is applicable to civil rights suits
include Carter v. Estelle, 5 Cir., 519 F.2d 1136 (action under 1983), and
Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 370 (action under
1983), reversed on other grounds sub nom. District of Columbia v. Carter, 409
U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613. In Hesselgesser v. Reilly, 9 Cir., 440
F.2d 901, 903-904, Tuley v. Heyd, 5 Cir., 482 F.2d 590, 594, and Scott v.
Vandiver, 5 Cir., 476 F.2d 238, 241-243, the courts held that vicarious liability
of a state or local officer is dependent on state law in a 1983 action. In the
Tenth Circuit some uncertainty exists. Compare Dewell v. Lawson, 10 Cir., 489
F.2d 877, 881-883, with Draeger v. Grand Central, Inc., 10 Cir., 504 F.2d 142,
145-146.
11
The problem of the application of respondeat superior to 1331 cases has come
to the fore since City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37
L.Ed.2d 109, which held that municipalities are immune from 1983 suits.
That decision discusses the possible liability of municipalities under 1331.
Ibid. at 514. The divergence of opinion on the applicability of respondeat
superior to 1331 suits has surfaced in the Northern District of Illinois.
Gresham v. City of Chicago, N.D.Ill., 405 F.Supp. 410, and Jamison v.
McCurrie, N.D.Ill., 388 F.Supp. 990 hold that respondeat superior is not
applicable in 1331 suits against a city. Collum v. Yurkovich, N.D.Ill., 409
F.Supp. 557, and Williams v. Brown, 398 F.Supp. 155, hold to the contrary.
Smetanka v. Borough of Ambridge, Pennsylvania, W.D.Pa., 378 F.Supp. 1366,
1377 refuses to apply respondeat superior to a 1331 suit.
12
The respondeat superior doctrine was discussed in Rizzo v. Goode, 423 U.S.
362, 96 S.Ct. 598, 46 L.Ed.2d 561, a suit under 1983. There the plaintiff sued
the Mayor, the Police Commissioner, the City Managing Director of
Philadelphia and others because of alleged unconstitutional acts of various nonparty police officers. The district court granted relief and the court of appeals
affirmed. See Goode v. Rizzo, 3 Cir., 506 F.2d 542. The Supreme Court
reversed. In its opinion the Court said, 423 U.S. at 371, 96 S.Ct. at 604:
13 the facts developed, there was no affirmative link between the occurrence of the
"As
various incidents of police misconduct and the adoption of any plan or policy by
petitioners express or otherwise showing their authorization or approval of such
misconduct."
14
The "affirmative link" requirement of Rizzo means to us that before a superior
may be held for acts of an inferior, the superior, expressly or otherwise, must
have participated or acquiesced in the constitutional deprivations of which
complaint is made. See Delaney v. Dias, D.Mass., 415 F.Supp. 1351, 13541355.
15
The issue is complicated by the fact that in civil rights suits against public
employees, the superior and the inferior are often employees of the same entity.
Respondeat superior operates against the employer or principal. It has been
suggested that respondeat superior does not subject a superior officer to
vicarious liability for the acts of his subordinate when both are servants of the
same master. See Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d at 370
n.39.
16
In the case at bar the defendants are all officers or employees of the United
States. Plaintiff seeks monetary relief from them for violation of42 U.S.C.
1983 which proscribes deprivation of civil rights under color of state law.
Section 1983 has no application to federal officers acting pursuant to federal
law. Soldevila v. Secretary of Agriculture of U.S., 1 Cir., 512 F.2d 427, 429.
See also Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 398
n.1, 91 S.Ct. 1999, 29 L.Ed.2d 619. No recovery may be had from any of the
defendants under 1983.
17
The other claim is for deprivation of constitutional rights with jurisdiction
based on 28 U.S.C. 1331 relating to federal questions. The complaint alleges
that the defendants violated plaintiff's constitutional rights. Under Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619, jurisdiction lies under 1331. In Bivens the action was against the officers
who assertedly violated the plaintiff's constitutional rights. Here the agents who
are alleged to have deprived the plaintiff of constitutional rights are not made
defendants. Recovery is sought from their superiors on the ground of vicarious
liability. The majority opinion in Bivens says nothing about respondeat
superior.
18
The question then is whether a federal officer may be held monetarily liable for
acts of his subordinates resulting in the deprivation of constitutional rights. The
actions of agents Fore and Hamilton in making inquiry of employers with
regard to employment of plaintiff violated no right of plaintiff. Such routine
investigations are well within the duties and responsibilities of the FBI. The
case rests on the disclosure by agent Adsit to the security officer of Samsonite
that plaintiff had an arrest record. This disclosure violated FBI regulations.
Counsel for plaintiff does not specify what constitutional right of plaintiff was
infringed. Instead, he relies on the penumbra of rights found in the first ten
Amendments.
19
In the circumstances we deem it unnecessary to explore what constitutional
right, if any, was infringed. On the assumption that he was deprived of some
constitutional right, he nevertheless may not recover from any of the defendants
on the doctrine of respondeat superior. The record is devoid of any connection
of Attorney General Levi, FBI Director Kelley, and SAC Giovanetti with the
investigation of plaintiff. The only connection of Newpher arises from the fact
that he was SAC when agent Adsit disclosed the arrest record to Samsonite.
20
Plaintiff urges that the superiors had knowledge of the acts of their agents
because the reports of the agents were addressed to the SAC. The form of
address conformed with FBI administrative procedures. There is no evidence
that any of the defendants saw the reports. In his brief plaintiff attempts to put
responsibility on the superiors because of an FBI regulation relating to
termination of an investigation. We fail to find any pertinence. Agent Hamilton
did recommend that the investigation be closed. In any event, the regulation is
not a part of the record and we may not consider it.
21
Nothing in the record shows that any defendant instigated the investigation of
plaintiff, directed its course, participated or acquiesced therein. There is no
proof of lack of training or of declaration of wrongful policy. Indeed the
disclosure by Adsit was contrary to FBI policy. In sum, plaintiff failed to
establish the "affirmative link" which Rizzo requires. The doctrine of
respondeat superior has no application to the facts here presented.
22
Because we hold that the defendants are not vicariously liable for monetary
damages, we have no reason to consider whether the defendants are immune
from suit.
23
When the trial court directed the verdict, it referred to the presence in the court
room of Newpher and Giovanetti and to the fact that they had not been called to
testify. Plaintiff argues that the statement was an impermissible speculation on
the testimony which a witness might give. The point has no merit. The trial
court noted what had occurred, but did not speculate or infer on what might
have been the testimony of the two defendants if they had been called as
witnesses.
24
Affirmed.
