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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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