Mickey Downie David Wheat v. City of Middleburg Heights, Richard P. Siegel Thomas Schneider

301 F.3d 688, 53 Fed. R. Serv. 3d 456, 2002 U.S. App. LEXIS 17527, 2002 WL 1941161
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 23, 2002
Docket01-3051
StatusPublished
Cited by45 cases

This text of 301 F.3d 688 (Mickey Downie David Wheat v. City of Middleburg Heights, Richard P. Siegel Thomas Schneider) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mickey Downie David Wheat v. City of Middleburg Heights, Richard P. Siegel Thomas Schneider, 301 F.3d 688, 53 Fed. R. Serv. 3d 456, 2002 U.S. App. LEXIS 17527, 2002 WL 1941161 (6th Cir. 2002).

Opinions

MOORE, J., delivered the opinion of the court, in which SILER, J., joined. STAFFORD, D.J. (pp. 699-702), delivered a separate concurring opinion.

OPINION

MOORE, Circuit Judge.

Plaintiff-Appellant Mickey Downie (“Downie”) appeals two orders of the district court dismissing his Bivens action against Defendants-Appellees Richard P. Siegel (“Siegel”), an agent of the United States Customs Service, and Thomas Schneider (“Schneider”), an agent of the united States Bureau of Alcohol, Tobacco, and Firearms (“ATF”). In 1998, Downie filed a complaint in federal district court against the City of Middleburg Heights, a number of state officials, and Siegel and Schneider, alleging various violations of his constitutional and statutory rights in connection with his resignation as an undercover informant for the United States Customs Service. Essentially, Downie claimed that Siegel retaliated against him for comments he made in his resignation letter by creating, maintaining, and then disseminating, to Schneider and the state officials, a “blackball” memo falsely stating that Downie was not a reliable informant.

The United States substituted itself for Siegel and Schneider, as federal employees acting in the scope of their employment, for all the claims in Downie’s complaint except those claims alleging constitutional violations. Siegel and Schneider then moved to dismiss Downie’s constitutional claims against them for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Concluding that Downie could not seek relief against the defendants under Bivens because Congress had enacted an elaborate remedial scheme in the Privacy Act of 1974 to address claims regarding the creation, maintenance, and dissemination of false records by federal agency employees, the district court in two orders fully granted the defendants’ motion to dismiss. Downie now appeals the district court’s dismissal of his constitutional claims against Siegel and Schneider. For the following reasons, we AFFIRM the orders of the district court.

I. BACKGROUND

On June 17, 1998, Mickey Downie and David Wheat (“Wheat”) filed a complaint [690]*690in the United States District Court for the Northern District of Ohio against the City of Middleburg Heights, Middleburg Heights Police Officer Glenn Blatnica, Ashtabula County Prosecutor Thomas Sar-tini, Cuyahoga County Chief Assistant Prosecutor Carmen Marino, U.S. Customs Service Agent Richard Siegel, ATF Agent Thomas Schneider, and federal and state law enforcement officers “John Does 1-10.” Joint Appendix (“J.A.”) at 12-13 (Compl.). The complaint alleged that Downie worked as an “undercover operative” for the U.S. Customs Service in 1990, “identifying several major U.S. corporations that were funneling millions of dollars to Communist governments of Vietnam and China in violation of federal law” for an undercover operation of the U.S. Treasury Department known as “Operation Leatherneck.” J.A. at 17 (Compl. ¶¶ 16-18).1 In June 1990, Downie claimed that he resigned as an “undercover operative” over disagreements between Downie and U.S. Customs officials as to decisions made in connection with “Operation Leatherneck.” Downie’s letter of resignation stated, inter alia, that:

I find it disconcerting that despite the overall success of this project, as well as my consistent referrals of documented intelligence to your office for the last six years, my identity would be compromised by you (if not for the ongoing gun case) to prosecute one more defendant for one count of trafficking counterfeit Gucci bags. For this reason I am giving serious consideration to referring the instant case to the FBI to investigate the nexus among the Ohio based violator, his brother who is an aide to a U.S. Congressman and this Congressman’s possible contacts with one of the Florida based conspirators.

J.A. at 36 (Letter of Resignation, Ex. A to Compl.). Following his resignation, Dow-nie claims that Siegel “began a campaign to discredit [him].” J.A. at 18 (ComplV 22).

Siegel’s alleged campaign to discredit Downie consisted of three parts. First, Downie claims that Siegel wrote a “blackball” memo regarding Downie, which Sie-gel sent to the director of the Office of Domestic Operations for the U.S. Customs Service and which stated in its entirety:

In accordance with chapter 41 of the Special Agent Handbook this office recommends that Mickey Downey ... be prohibited (blacklisted) from any further participation as a source of information for the Customs Service. This source has proven to be both undesirable and unreliable. He reneged on a promise to testify at the conclusion of an undercover investigation, refused to take direction of his control agent and other supervisory agents regarding his activities in an undercover investigation and revealed proprietary Customs information regarding a sensitive undercover investigation to other law enforcement agencies and parties unknown without the permission of the Customs Service. His actions compromised more than one investigation causing possible danger to an undercover Customs Special Agent and the dismissal of criminal charges against at least one defendant.... For the above reasons, it is my belief that the individual should no longer be used as an informant by the Customs Service.

J.A. at 37 (Siegel Memo, Ex. B to Compl.). Second, Downie claims that Siegel “enlisted the assistance” of Schneider, and, together, they caused Downie’s federal firearms license to be revoked, illegally seized [691]*691Downie’s firearm, and caused the entry of false records into the City of Middleburg Heights police files regarding an arrest of Downie for carrying a concealed weapon. J.A. at 19-20 (Compl. ¶¶ 29-33). Third, Downie claims that “various federal officials” caused him and his assistant, Wheat, to be fired from positions with the Ashta-bula County Narcotics Task Force. J.A. at 23-24 (Compl. ¶¶ 54-61). According to Downie, he was hired to be “director” of the Ashtabula County Narcotics Task Force by defendant Thomas Sartini, the Ashtabula County Prosecutor. Downie contends that, after hiring him, Sartini was contacted by various federal officials and warned that if he did not fire Downie, the federal officials would no longer work with Sartini. The federal officials purportedly told Sartini that Downie was “undesirable and unreliable,” the exact words used in the “blackball” memo. J.A. at 23 (Compl. ¶ 56).

On the basis of the above facts, Downie and Wheat alleged in the complaint that: (1) the defendants retaliated against them in violation of their First Amendment rights; (2) the defendants violated their rights under Ohio law; and (3) the defendants conspired to deprive them of their constitutional and state-law rights. Along with the complaint, Downie and Wheat filed a motion for a temporary restraining order and a preliminary injunction, but after a hearing on July 9, 1998, the district court denied the motion. On November 2, 1998, the United States substituted itself for defendants Siegel and Schneider pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act”), codified at 28 U.S.C. § 2679.2 The substitution covered all the claims alleged in the plaintiffs’ eom-plaint, except those alleging violations of the United States Constitution.

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Bluebook (online)
301 F.3d 688, 53 Fed. R. Serv. 3d 456, 2002 U.S. App. LEXIS 17527, 2002 WL 1941161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mickey-downie-david-wheat-v-city-of-middleburg-heights-richard-p-siegel-ca6-2002.