Council to remove and consider the case because of the delay. On November 2, 1976, the Appeals Council informed Brown that a decision adverse to Coleman had been rendered on October 29, 1976. On June 15, 1977, the Appeals Council reversed and remanded because of demonstrated hostility against the claimant and attorney through the hearing process and the decision itself. The case was then reassigned to another ALJ for decision.
In September, 1977, ostensibly acting as a self-appointed private attorney general endeavoring to attack the validity of the Appeals Council's order of June 15, 1977, Chocallo filed a first amended complaint in this court to add as defendants the Secretary of DHEW and the claimant Coleman.
C. DENIAL OF PROMOTION AND LACK OF PRODUCTIVITY
On February 29, 1976, Chocallo communicated with David Matthews of DHEW requesting a full investigation into defendants' conduct in the Coleman case. By letter dated April 9, 1976, defendant Robert L. Trachtenberg, Director of the Bureau of Hearings and Appeals, advised Chocallo that he planned to recommend instituting an adverse action against her, and that he felt it improper to reply to her letter which had been referred to him by Matthews. Because of the contemplated adverse action, Trachtenberg decided to withhold Chocallo's promotion which would ordinarily have been effective by operation of law on April 11, 1976. (Trachtenberg Affidavit, para. 4). On May 25, 1976, Chocallo reported Trachtenberg's actions to the Civil Service Commission which ultimately directed Trachtenberg to initiate retroactive corrective action. The action was taken and Chocallo received a retroactive promotion and backpay. Subsequently, on April 29, 1977, Chocallo was informed by Brown that her production was unacceptably low, and was instructed to increase her output within sixty days. Apparently, the "productivity" issue had been raised previously in January, 1976 by Gitman due to a "multitude of complaints" which were filed by persons who had appeared before Chocallo and who complained of delayed decisions. (Gitman Affidavit, para. 10, 11). Ultimately, on May 31, 1977, Gitman addressed a letter to Chocallo requesting her to inform him on a weekly basis of the number of case dispositions. (Complaint para. 37). Chocallo asserts that if her productivity was low, it was because she was denied an adequate support staff. (Complaint, para. 34).
D. DENIAL OF ACCESS TO PERSONNEL FILE
Finally, plaintiff alleges that her rights under the Privacy Act were violated by defendants Trachtenberg, Gitman and Lightfoot who delayed and/or refused to furnish her copies of all records and data concerning her which were in the Bureau's possession. Further, she claims that her Privacy Act rights were violated since defendants collected irrelevant and damaging information, in particular, complaints filed by attorneys and claimants concerning her performance which were disseminated without her knowledge. Based on the above events, plaintiff sues the following group of defendants.
II. The Community Legal Services ("CLS") Defendants
Chocallo claims that various attorneys affiliated with CLS, who represented claimants appearing before her, conspired with the federal defendants to violate her constitutional and statutory rights. The CLS defendants include Linda Bernstein, Esquire, Marjorie Janoski, Esquire, Bartholomew Poindexter, Esquire, Richard Weishaupt, Esquire, and Deborah Kooperman, Eileen Wood and Marilyn Davis Weiler, CLS paralegals.
It is unclear what constitutional rights were allegedly violated by the CLS defendants. Chocallo appears to claim that she had a constitutional right to be an "independent judge," to continue to hold office (Complaint para. 40, 48), and not to be "unlawfully deprived of her liberty to use the powers of her mind, judgment and experience . . ." (Complaint para. 48). In addition, Chocallo claims that the public's rights and the rights of claimants in Social Security appeals were violated. (Complaint, para. 41, 43). Based on these allegations, the CLS defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b) (6). Even accepting all of the well-pleaded facts in plaintiff's complaint as true, I find that the CLS defendants' motion must be granted. Chocallo claims relief under all three sections of 42 U.S.C. § 1985 (1976).
I address these claims in reverse order.
A. 42 U.S.C. § 1985(3)
To state a cause of action under § 1985(3), the plaintiff must show (1) that a federally secured right has been invaded by the defendants, (2) that the defendants conspired to deprive the plaintiff of her rights, and (3) that the defendants' actions were motivated by a "class-based, invidiously discriminatory animus. . . ." Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). Waits v. McGowan, 516 F.2d 203, 208-09 (3d Cir. 1975); See also Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 492 (1972); Local No. 1 (ACA) v. I.B.T., C., W. & H., 419 F. Supp. 263, 275-77 (E.D. Pa. 1976). "'Section [1985(3)] provides no substantive right itself; it merely provides a remedy for violation of rights it designates.'" Marino v. Bowers, 657 F.2d 1363, 1371 (3d Cir. 1981), (quoting Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979).
With respect to the claim of constitutional violations, plaintiff alleges only that her rights to due process and equal protection under the Fifth Amendment were infringed by the actions of the CLS defendants. However, plaintiff alleges no facts that would establish that the CLS defendants violated these rights. Although she alleges that the CLS defendants were obstructive, rude and offensive, that they sought to disqualify her from sitting in certain cases, and that they failed to properly represent certain clients in cases before her, none of these allegations implicates plaintiff's constitutional rights. As a judge, she has no constitutional right to be free from criticism, disqualification, or even ridicule. Cf. In re Dellinger, 461 F.2d 389, 400 (7th Cir. 1972). (Attorneys given latitude as vigorous advocates and mere disrespect or insult not necessarily punishable as contempt.) Quite to the contrary, the actions complained of are themselves protected by the First and Sixth Amendments. The CLS defendants are entitled under the Constitution and federal law to criticize plaintiff as a judge and federal official. See, e.g., Wood v. Georgia, 370 U.S. 375, 388-91, 8 L. Ed. 2d 569, 82 S. Ct. 1364 (1962); In re Sawyer, 360 U.S. 622, 632-33, 3 L. Ed. 2d 1473, 79 S. Ct. 1376 (1959); In re Oliver, 452 F.2d 111, 114-15 (7th Cir. 1971). See also Canon 7, ABA Code of Professional Responsibility.
Moreover, in particular cases, where the assigned judge may be biased, prejudiced, or predisposed as to the outcome, the attorney may have an obligation to file a motion for disqualification. Indeed, the regulations which control the hearing procedures involving administrative law judges specifically provide for disqualification of presiding officers. 20 C.F.R. § 416.1430. Plaintiff has no constitutional right to be exempted from this provision.
Finally, in the course of representing their clients, CLS attorneys are entitled to make a wide range of tactical and legal decisions, and only the client, and not a third party such as any administrative law judge, has standing to complain that these decisions and actions violate the constitutional rights of the client. See, e.g., O'Malley v. Brierley, 477 F.2d 785, 789 (3d Cir. 1973) (litigant may assert only his own constitutional rights or immunities).
The Supreme Court has repeatedly emphasized the importance of protecting the independence of attorneys and ensuring zealous advocacy on behalf of clients under our adversary system of justice. See, e.g., In re Sawyer, 360 U.S. 622, 635-36, 3 L. Ed. 2d 1473, 79 S. Ct. 1376 (1959). See also In re Dellinger, 461 F.2d at 400. These principles must be followed with special care with respect to legal service organizations where, because of funding and other considerations, there is a high risk of interference and control by the government or the courts. Fairly read, plaintiff's requests for relief, if granted, would seriously encroach upon the protected activities of the CLS defendants.
It is also clear that plaintiff's complaint fails to satisfy the requirement that defendants' actions be motivated by a class-based, discriminatory animus. Such allegations must allege discrimination against a well defined class, and discrimination that "(1) affects a traditionally disadvantaged group (e.g., 'suspect' classification); (2) is irrational; or (3) unnecessarily burdens plaintiff's exercise of a 'fundamental' right." Santiago v. City of Philadelphia, 435 F. Supp. 136, 156 (E.D. Pa. 1977). Plaintiff fails to satisfy any of these standards.
Plaintiff does not allege discrimination based on race, sex, alienage, or any other suspect classification. Nor does she claim discrimination against administrative law judges as a class. Thus, she fails to state a claim under § 1985(3).
B. 42 U.S.C. § 1985(2)
The Third Circuit construes section 1985(2) as subdivided into two parts -- one part preceding and the other following the semi-colon. Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). The second half of section 1985(2), proscribing obstructions of justice having as their object the denial of equal protection of the laws, Haefner v. County of Lancaster, 520 F. Supp. 131, 134 (E.D. Pa. 1981), has been construed to require the same class-based, invidiously discriminatory animus as that which has been required under § 1985(3). Brawer, 535 F.2d at 840. Accordingly, for the reasons stated above, plaintiff's claim under this section must also be dismissed.
The first clause of subsection (2) is aimed at conspiracies to intimidate or pressure witnesses, parties and jurors in the performance of their duties in any court of the United States. Brawer, 535 F.2d at 840. This section does not provide judges or others involved in the judicial process, who are not specified in the statute, with any protection. Plaintiff, as a judge, does not have standing under this statute to raise the constitutional claims of litigants who appear before her. O'Malley v. Brierley, 477 F.2d at 789 (one cannot sue for deprivation of another's civil rights.)
C. Section 1985(1)
Section 1985(1) has not been definitively construed by the Third Circuit. However, in a carefully considered opinion, with which I am in agreement, the Seventh Circuit has construed it to consist of four component parts. Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1336 (7th Cir.), cert. denied, 434 U.S. 975, 54 L. Ed. 2d 467, 98 S. Ct. 533 (1977). Parts one and two proscribe conspiracies to prevent federal officers, by the use of "force, intimidation, or threat" from holding office or discharging their duties. Also proscribed are conspiracies to induce federal officers to leave a place where their duties must be performed. Stern, 547 F.2d at 1336. Here, plaintiff alleges no facts whatsoever to establish conduct by CLS defendants which rises to the level of force, intimidation or threats. The CLS defendants have, as outlined above, merely exercised their statutory and constitutional responsibilities as attorneys and paralegals. Thus, these portions of section 1985(1) are not implicated by the alleged conduct. Parts three and four, however, proscribe conduct which falls short of force, intimidation or threats. Conspiracies to injure a federal officer in his person or property on account of, or during the lawful discharge of his duties are not permitted. Also forbidden are conspiracies to injure his property in order to impede him in the discharge of his duties. Plaintiff presumably claims that the alleged conduct falls within these proscriptions. However, as in Stern, the gravamen of plaintiff's complaint against the CLS defendants is that they interferred with the discharge of plaintiff's duties by overzealous advocacy and by filing complaints with her supervisors about the manner in which she performed her duties. I find, as did the court in Stern, that section 1985(1) must be read narrowly so as not to implicate these constitutionally protected activities. In Stern, the court found that plaintiff, an IRS agent who had sued a corporation and its officers for filing complaints with plaintiff's superiors concerning the performance of duties during an audit, did not state a claim under § 1985(1). It found such activity to be protected by the First Amendment since "public criticism of governmental policy and those responsible for government operations is at the very core of the constitutionally protected free speech area," Stern, 547 F.2d at 1342, and "presenting complaints to responsible government officials about the conduct of their subordinates with whom the complainer has had official dealings is analogously central to the protections of the right to petition." Id. at 1342-43. The court found it irrelevant that the exercise of this right may cause professional injury to the official in question. Nor was it relevant that the complainant may be aware of, and desire, such injury to occur, at least when the complaints are lodged through the proper and established channels. Id. at 1343. The court found it irrelevant that the exericse of this right may cause professional injury to the official in question. Nor was it relevant that the complainant may be aware of, and desire, such injury to occur, at least when the complaints are lodges through the proper and established channels. Id. at 1343. Likewise, in this case, the CLS defendants have merely exercised their statutory and constitutional responsibilities as attorneys and paralegals, as outlined above. They have not, as a result, deprived plaintiff of any federally secured right under section 1985(1).
D. The Fifth Amendment
It appears that any authority for a direct cause of action under the Fifth Amendment derives from Bivens v. Six Unknown Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). However, two fundamental requirements must be satisfied before a Bivens cause of action can be stated. First, the plaintiff must be deprived of a constitutionally protected right under the specific Amendment; second, the defendants' actions must have been taken under color of law. Bivens, 403 U.S. at 392-397. As indicated, there is no showing that the CLS defendants did anything illegal to plaintiff. Consequently, they have deprived her of no constitutionally protected right and her claim directly under the Fifth Amendment must also fail.
III. DEFENDANT JOHN C. COLEMAN, SOCIAL SECURITY CLAIMANT
Plaintiff filed an amended complaint on August 15, 1977 (Docket Entry #5) wherein John C. Coleman is named as a defendant. In that complaint, plaintiff protests an Order of the Appeals Council removing Coleman's case from her and reassigning it to another administrative law judge. Coleman moved to dismiss, asserting that the complaint fails to state a claim against him. I agree. A review of the amended complaint fails to disclose any allegation as to any actions taken by Coleman, acting independently of his attorney, that were directed against plaintiff. To the extent that Coleman is involved, it is only through his attorney against whom the action has been dismissed for failure to state a claim. Thus, the action against Coleman, the client, must be dismissed for the same reasons.
IV. DEFENDANT, JOSEPH CALIFANO, FORMER SECRETARY OF DHEW
In the same August 15, 1977 amended complaint, plaintiff sued the Secretary of DHEW complaining that the Appeals Council's removal and remand order in the Coleman case was contrary to the applicable provisions of the Administrative Procedure Act, and in violation of rights guaranteed under the Fifth Amendment. Although not stated, it is apparent that Califano was sued in his official capacity. Plaintiff requested this court to direct the Secretary to overrule the Appeals Council and to adopt, as his own, her decision denying Coleman benefits. Califano moved to dismiss plaintiff's complaint for failure to state a claim against him. I agree that dismissal is proper because plaintiff lacks standing to challenge the action taken by the Appeals Council. To have standing, plaintiff must demonstrate both that (1) "the challenged action has caused [her] injury in fact, economic or otherwise," and (2) that the interest sought to be protected is "arguably within the zone of interests to be protected by or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). Plaintiff completely fails to establish either element.
Plaintiff cannot show that she was deprived of any legally protected interest by the Appeals Council Order of June 9, 1977, according Coleman a new hearing before another administrative law judge. As a presiding officer assigned to determine the eligibility of a claimant for supplemental social security benefits, the plaintiff had a statutory obligation to decide, without prejudice, the merits of the case before her. 5 U.S.C. § 556(a). Any partiality on the part of the presiding officer in a pending matter requires disqualification. Social Security Administration regulations, 20 C.F.R. § 416.1430 provide in pertinent part:
§ 416.1430 Disqualification of pending officer.
No presiding officer shall conduct a hearing in a case in which he is prejudiced or partial with respect to any party, or where he has any interest in the matter pending for decision before him.