               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 99-10626
                          Summary Calendar
                       _____________________

NEIL JACOBS,

                                               Plaintiff-Appellant,

                              versus

JANET RENO, Attorney General of
theUnited States of America,

                                              Defendant-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
            for the Northern District of Texas, Dallas
                       USDC No. 3:97-CV-2698
_________________________________________________________________

                         January 20, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     The plaintiff, Neil Jacobs, the assistant district director

for investigations for the Dallas District of the Immigration and

Naturalization Service (“INS”), appeals the district court’s entry

of summary judgment in favor of the defendant, Janet Reno, with

respect to his claim under the Privacy Act codified at 5 U.S.C.

§ 552a(e)(2).1    The plaintiff argues that the INS Office of

     *
      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this opinion should not be published and is not precedent except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.
     1
      The Privacy Act provides in relevant part:

     (e)Agency requirements.--Each agency that maintains a
     system of records shall--
                          .     .    .
Internal Audit (“OIA”), when investigating claims of misconduct

made both by and against the plaintiff, did not attempt to collect

as   much   information     as   possible     from   the   plaintiff   before

consulting with third parties, as required by the Privacy Act.

Thus, the plaintiff argues, the district court erred in holding

that the actions of the OIA as a matter of law did not violate the

rights afforded to the plaintiff by the Privacy Act.

      On appeal, the defendant’s brief raised for the first time the

issue of whether the Privacy Act provided the plaintiff with a

cause of action against the defendant in her individual capacity.

Following    receipt   of    the      defendant’s    appellate   brief,     the

plaintiff, apparently conceding the validity of the defendant’s

contention, filed a motion with our court, purportedly under Rule

15 of the Federal Rules of Civil Procedure, for leave to amend his

pleadings   to   substitute      as   the   defendant   the   “Department    of

Justice, United States of America” in the place of “Janet Reno.”

      In Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987), and

Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1215 (5th

Cir. 1989), we held that the Privacy Act does not create a cause of

action against individual employees of a federal agency in their



            (2) collect information to the greatest extent
            practicable directly from the subject individual
            when the information may result in adverse
            determinations   about  an   individual’s  rights,
            benefits, and privileges under Federal programs.

5 U.S.C. § 552a(e) (West 1999).




                                        2
individual capacity.   Rather, we held, the Act provides a cause of

action against only the “agency.”    Id.   Thus, because the Privacy

Act does not provide the plaintiff a cause of action against the

defendant, she is entitled to summary judgment on this claim as a

matter of law.

        Turning to the plaintiff’s motion for leave to amend his

pleadings, we think that even assuming we have the authority to

consider such a motion,2 leave of court to amend should not be

granted because such an amendment would prove futile.        As the

district court correctly noted, because of the nature of many of

    2
     See 6 C. Wright & A. Miller, Federal Practice and Procedure:
Civil 2d § 1489 (1990), calling into question an appellate court’s
authority to grant a motion to amend the pleading, stating:

     Although Rule 15(a) vests the district judge with
     virtually unlimited discretion to allow amendments by
     stating that leave to amend may be granted when ‘justice
     so requires,’ there is a question concerning the extent
     of this power once a judgment has been entered or an
     appeal has been taken.     Most courts faced with the
     problem have held that once a judgment is entered the
     filing of an amendment cannot be allowed until the
     judgment is set aside or vacated under Federal Rule of
     Civil Procedure 59 or 60. . . . This approach appears
     sound.   To hold otherwise would enable the liberal
     amendment policy of Rule 15(a) to be employed in a way
     that is contrary to the philosophy favoring finality of
     judgments and the expeditious termination of litigation.
     Furthermore, the draftsmen of the rules included Rules
     59(e) and 60(b) specifically to provide a mechanism for
     those situations in which relief must be obtained after
     judgment and the broad amendment policy of Rule 15(a)
     should not be construed in a manner that would render
     those provisions meaningless.

See also, Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 597
n.1 (5th Cir. 1981)(citing with approval section 1489 of Wright &
Miller’s Federal Practice and Procedure).




                                 3
the claims of misconduct alleged both by and against the plaintiff,

it would have been impractical for the OIA to have started its

investigation by interviewing the plaintiff.            The plaintiff was

both a charging party and an accused in several alleged instances

of   intimidation,   fabrication    of    claims   of    misconduct,   and

retaliatory conduct.    Consequently, as a result of the nature of

the claims of misconduct, if the OIA had gone initially to the

plaintiff to investigate these claims, the investigation may have

been materially hampered.    Furthermore, the working conditions may

have further deteriorated, creating an even more hostile work

environment.   Thus, because the investigatory techniques utilized

by the OIA to investigate the claims of misconduct were reasonable

in the light of the nature of the allegations, its actions were

reasonable and did not run afoul of the plaintiff’s rights as

defined by the Privacy Act.        See 5 C.F.R. § 293.104(a) (1999);

Hudson v. Reno, 130 F.3d 1193, 1205 (6th Cir. 1997)(stating because

the record indicated that the plaintiff was suspected of making

false   statements   and    intimidating     and   threatening    people,

“practical considerations demonstrated that [the investigator] did

not violate the Privacy Act when he interviewed others before

interviewing [the plaintiff]”).         Consequently, regardless of who

the plaintiff names as a defendant, in a suit based upon these

facts, no valid cause of action lies under the Privacy Act.             As

such, the granting of the plaintiff’s motion for leave of court to




                                    4
amend his pleadings would be futile because his claim clearly lacks

merit.

     In sum, the judgment of the district court granting the

defendant’s motion for summary judgment is

                                                 A F F I R M E D.3




         3
       The plaintiff’s motion for leave of court to amend his
pleadings is DENIED.




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