Sixth Circuit Boots Joe the Plumber In A Retrograde Opinion That Gives Advantage To Management

Remember Joe the Plumber from the 2008 presidential campaign? His real name is Samuel Joseph Wurzelbacher. As you may recall, Joe rose to prominence after asking several questions of then presidential candidate Obama, related to the impact that Omama’s tax plan would have on Joe’s ability to purchase a small business.

Since then, Joe has been engaged in litigation involving officials in the Ohio Department of Job and Family Services (ODJFS), the agency which administers Ohio state programs such as child support enforcement, a “Temporary Aid to Needy Families” cash assistance program, and unemployment compensation.  ODJFS also maintains confidential databases in connection with the programs it administers. Within days after Joe rose to prominence in the media, three high level ODJFS officials authorized searches of those databases for records related to Joe. The agency officials got caught red handed, and were disciplined. No confidential information was disclosed to the public.

Joe sued the three officials under § 1983, alleging First Amendment retaliation and violation of his informational right to privacy. In Wurzelbacher v. Jones-Kelley, No. 10-4009, U.S. App. LEXIS 6177 (6th Cir. March 27, 2012), a panel of the Sixth Circuit, Judge Griffin writing, affirmed a district court order granting judgment on the pleadings in the defendants’ favor. The Sixth Circuit held that the first question was whether there was an alleged adverse action “sufficient to deter a person of ordinary firmness,” and went on to find that “a person of ordinary firmness” would not be deterred or chilled by high level officials of a state government agency searching confidential databases for information about that person. Interestingly, the Court recognized that this is “generally a question of fact,” but went on to reject arguments that a jury ought resolve this question, holding that the searches were “inconsequential”; that the searches resulted in nothing more than a “de minimis injury”; and that it “trivializes the First Amendment to allow plaintiffs to bring such a claim.”

The Court went on to affirm judgment on the informational right to privacy claim, recognizing that the Sixth Circuit has followed a minority view regarding the contours of such a claim. The panel stated that the Sixth Circuit has limited the right of informational privacy “only to interests that implicate a fundamental liberty interest.” Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008). The Court went on to state, relying on Lambert: “Given this demanding standard, we have recognized a constitutionally-protected informational-privacy interest in only two circumstances: (1) where the release of personal information may lead to bodily harm, and (2) where the released information relates to matters ‘of a sexual, personal, and humiliating nature.”’ Lambert, 517 at 440. As stated, the Sixth Circuit is in a decided minority on the breadth of the informational right to privacy. See Stathros v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322–23 (2d Cir. 1999) (citing Whalen v. Roe, 429 U.S. 589 (1977) for an analysis of whether financial disclosure requirements violated Stathros’ right to privacy); see also Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 109 (3d Cir. 1987); Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990); Plante v. Gonzalez, 575 F.2d 1119, 1132–33 (5th Cir. 1978); Denius v. Dunlap, 209 F.3d 944, 955 (7th Cir. 2000); Eagle v. Morgan, 88 F. 3d 620, 625 (8th Cir. 1996); Tuscon Woman’s Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986); Hester v. City of Milledgeville, 777 F.2d 1492, 1497 (11th Cir. 1985). But see Borucki v. Ryan, 827 F.2d 836, 841–42 (1st Cir. 1987) (expressing concern regarding the existence of such a right, but declining to address the issue); Am. Fed’n of Gov’t Emps. v. HUD, 118 F.3d 786, 791 (D.C. Cir. 1997) (expressing “grave doubts” as to the existence of such a right, but proceeding to analyze and reject the claim anyway).

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