UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) VERNON NORMAN EARLE, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0422 (PLF) ) ERIC HOLDER, et al., ) ) Defendants. ) ____________________________________)

OPINION

Plaintiff, a federal prisoner proceeding pro se, commenced this action against

several individual District of Columbia and federal defendants, seeking monetary damages and

the “correction of [his] files and [r]ecords, as reflective of [his] [District of Columbia] sentences

. . . .” Civil Complaint (“Compl.”) at 10.1 Plaintiff states that this action “arises” under the

Freedom of Information Act (“FOIA”),

, and the Privacy Act, 5 U.S.C. § 552a. Id.

at 5. The Court recently granted plaintiff’s motion to withdraw any claims brought against the

individual federal defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics,

(1971). See Memorandum Opinion and Order of September 9, 2011

[Dkt. # 29]. In addition, the Court recently dismissed the claims against the District of Columbia

defendants. See Order of September 28, 2011 [Dkt. # 31].

The federal defendants move collectively to dismiss the complaint. Upon

consideration of the parties’ submissions, and for the following reasons, the Court will grant the

instant motion to dismiss the remaining FOIA and Privacy Act claims.

1 Plaintiff is currently incarcerated at the McCreary United States Penitentiary (“USP”) in Pine Knot, Kentucky. I. BACKGROUND

The alleged facts relevant to the instant motion are as follows. On December 18,

2006, plaintiff’s case manager at USP Big Sandy in Inez, Kentucky, Jenifer Fultz, conducted “a

Reclassification on Plaintiff using the male custody Classification form . . . .” Compl. at 5. Fultz

“change[d] my current conviction to prior conviction and activated a sentence which can not be

aggregated because its [sic] a federal sentence, and my present sentence is a District of Columbia

. . . sentence.”

Plaintiff alleges that Fultz was retaliating against him for having filed “several

Grievances against her” and that she “informed plaintiff before his Classification that she [was]

going to give [him] 24 points to keep him in the penitentiary settings.”

Plaintiff

unsuccessfully appealed the classification and, on August 9, 2007, “the B.O.P. Director”

allegedly “concur[red] with the incorrect calculation of plaintiff[’s] criminal [h]istory score base

[sic] on prior conviction which is the corrent [sic] sentence now been [sic] serve [sic] by the

plaintiff.” Id., ¶ 3; see Compl. Attach. [Dkt. # 1-1] at 21 (Response to Administrative Remedy).2

On October 4, 2007, plaintiff was transferred to his current facility, USP

McCreary, where he was informed that he had 27 points, “up 3 points from the 24 at [USP Big

Sandy].” Compl. at 5, ¶ 4. When plaintiff protested the accuracy of the scoring, he allegedly was

directed to view his presentence investigation report (“PSR”). Id. at 6. After reviewing the

report, plaintiff determined that he was scored incorrectly based on an alleged improper

aggregation of his federal sentence of 30 months for escape with his District of Columbia

sentence. Id. According to plaintiff, the “30 month[] sentence has effectively taken the place of

2 In ruling on a Rule 12(b)(6) motion to dismiss, the Court may consider “any documents either attached to or incorporated in the complaint . . . without converting the motion to dismiss into one for summary judgment.” Baker v. Henderson,

(D.D.C. 2001) (citations omitted).

2 plaintiff[’s] corrent [sic] sentence, and place plaintiff[’s] D.C.D.C. as prior convictions, which

would make [the D.C.] sentences stop [r]unning.”

Plaintiff says he informed his then-case

manager, T. Browder, and the case manager coordinator, T. Sheldrake, that they could “activate

nothing concerning the . . . federal sentence” until he had completed service of the D.C. sentence.

The case managers allegedly told plaintiff that he would need to write “the probation office

to [challenge] the files and records[’] incorrectness.”

Plaintiff allegedly demanded that the

case managers contact the probation office pursuant to Bureau of Prisons (“BOP”) policy and the

Privacy Act.

He then filed grievances, “but to no avail.” Id.; see generally Compl. Attachs.

Allegedly, on April 16, 2008, in response to plaintiff’s appeal to BOP’s central office, “the

F.B.O.P. director refuse[d] to act on its own policy to instruct its employees to do their duty

. . . .,” which, according to plaintiff, was to contact the probation office to correct information

contained in his PSR. Id. at 7.

Plaintiff further alleges that on August 15, 2008, he filed a FOIA/PA request with

BOP “for correction of Records or ‘Amendment Request’ . . . .” Id. at 8. He received a response

“refusing to address [the] issue” on September 17, 2008. Id. On October 1, 2008, plaintiff

appealed the denial of his request “to amend and correct [his] records and files” to “[then-BOP]

Director Harley G. Lappin,” who acknowledged the appeal by letter of November 21, 2008. Id.

On February 13, 2009, plaintiff “received a communication from the Office of privacy and Civil

Liberties, in the U.S. Department of [J]ustice, assigning an appeal number.” Id. Plaintiff sent

that office a letter on March 4, 2009, complaining about the delay. This civil action was formally

filed on March 15, 2010.3

3 In his certificate of service attached to the complaint, plaintiff states that he mailed the complaint from his prison on January 21, 2010. Under the so-called mailbox rule (continued...)

3 II. DISCUSSION

A. The FOIA Claim

As an initial matter, the Court finds that the complaint establishes no basis for

exercising jurisdiction under the FOIA. The Court’s jurisdiction under the FOIA extends only to

claims arising from the improper withholding of agency records. See Vazquez v. U.S. Dep’t of

Justice,

(D.D.C. 2011) (citing

(a)(4)(B); McGehee v.

CIA,

(D.C. Cir. 1983)). Plaintiff has not alleged that he requested the

disclosure of records and was denied. See

(a)(6)(A)(I) (requiring an agency to

“determine within 20 days . . . after the receipt” of a properly submitted FOIA request “whether

to comply with the request” and to notify the requester accordingly). Rather, he challenges the

accuracy of agency records, which is the exclusive province of the Privacy Act. See Chung v.

U.S. Dep’t of Justice,

(D.C. Cir. 2003) (affirming dismissal of constitutional

claims against DOJ officials as “encompassed within the remedial scheme of the Privacy Act.”)

(citation omitted); accord Lynn v. Lappin,

(D.D.C. 2009)

(dismissing constitutional claims)(citations omitted); see also Blazy v. Tenet,

(D.C. Cir. 1999) (explaining that “[u]nlike FOIA, the Privacy Act's primary purpose is not

disclosure. Rather, ‘the main purpose of the Privacy Act's disclosure requirement is to allow

individuals on whom information is being compiled and retrieved the opportunity to review the

information and request that the agency correct any inaccuracies.’ ”) (quoting Henke v. United

States Dep't of Commerce,

(D.C. Cir. 1996)).

3 (...continued) applicable to actions filed by prisoners, the Court accepts this date as the filing date for purposes of measuring the statutory limitations period.

4 For these reasons, the Court dismisses any claims purportedly “arising” under the

FOIA for lack of jurisdiction.

B. The Privacy Act Claim

Defendants seek dismissal of the Privacy Act claim on the grounds that (1) the

Privacy Act does not authorize claims against individuals; (2) the claim is time-barred;

(3) the BOP has exempted its inmate central file – where plaintiff’s PSR is maintained – from the

Privacy Act’s amendment and accuracy provisions; and (4) the Privacy Act is not the proper

avenue for challenging the accuracy of information contained in the PSR.

1. The Proper Defendants

Defendants correctly argue that the Privacy Act does not authorize claims against

individuals. See Mem. of P. & A. in Support of Fed. Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) at

6-7; Martinez v. Bureau of Prisons,

(D.C. Cir. 2006) (“[T]he district court

properly dismissed the named individual defendants because no cause of action exists that would

entitle appellant to relief from them under the Privacy Act or FOIA.”) (citations omitted); accord

Lynn v. Lappin,

(dismissing “the constitutional claims and the claims

against the individual defendants to the extent that they are sued in their individual capacities.”)

(citations omitted). The Court therefore dismisses the complaint against the individual officials

and substitutes the Department of Justice (“DOJ”), of which BOP is a component, as the proper

defendant. See Sonds v. Huff,

(D.D.C. 2005) (substituting DOJ as the

sole defendant in FOIA action naming individual defendants).

5 2. The Statute of Limitations

The Privacy Act authorizes a lawsuit

to enforce any liability created under this section . . . [if it is] brought . . . within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.

5 U.S.C. § 552a(g)(5). See Tijerina v. Walters,

(D.C. Cir. 1987) (the Privacy

Act's statute of limitations begins to run when the plaintiff knew or had reason to know of the

alleged violation). Defendants wrongly assert that “[f]ailing to file a Privacy Act claim within

the two-year statute of limitations period effectively deprives the court of subject matter

jurisdiction . . . .” Defs.’ Mem. at 8. The Privacy Act's statute of limitations is not jurisdictional;

it therefore is subject to equitable tolling in appropriate circumstances, "most commonly when

the plaintiff 'despite all due diligence . . . is unable to obtain vital information bearing on the

existence of his claim.' " Chung v. Dep’t of Justice,

(D.C. Cir. 2003) (quoting

Currier v. Radio Free Europe,

(D.C. Cir. 1998)). “Because statute of

limitations issues often depend on contested questions of fact . . . the Court may grant a motion

to dismiss as untimely only if the complaint on its face is conclusively time-barred . . . or if no

reasonable person could disagree on the date on which the cause of action accrued.” Ramirez v.

Dep’t of Justice,

(D.D.C. 2009) (citations and internal quotation marks

omitted).

Defendants argue that plaintiff knew about his claim “as early as November 5,

2007,” and that “the latest date that the cause of action pertaining to the [PSR] could have arose

6 [sic] is on the date he filed the Request for Administrative Remedy, on December 3, 2007.”

Defs.’ Mem. at 8. The response to plaintiff’s grievance, however, informed plaintiff that he

could appeal the decision to the Regional Director at BOP’s Mid-Atlantic Regional Office, which

he did. Compl. Attach. at 4 (Part B-Response); id. at 5 (Regional Administrative Remedy

Appeal). Defendants have not refuted plaintiff’s documented administrative pursuits since

discovering the impact of the alleged inaccuracies on his classification score, see generally

Compl. Attachs., the last of which, according to plaintiff, occurred on August 15, 2008, when he

submitted a request under the Privacy Act for BOP to amend or correct his records. Compl. at 8.4

Furthermore, defendants have not disputed plaintiff’s contention that the final agency action

occurred on September 17, 2008, when the BOP Director denied his administrative appeal. Id.

Finally, the Court will not fault plaintiff for seeking a final agency decision that, if successful,

would have negated his need to file a lawsuit. See Hidalgo v. FBI,

(D.C.

Cir. 2003) (“ ‘Exhaustion of administrative remedies is generally required before filing suit in

federal court so that the agency has an opportunity to exercise its discretion and expertise on the

matter and to make a factual record to support its decision.’ ”) (quoting Oglesby v. United States

Dep't of the Army,

(D.C. Cir. 1990)) (other citation omitted).

4 On a motion to dismiss under Rule 12(b)(6), the Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus,

(2007); see also Bell Atlantic Corp. v. Twombly,

(2007); Phillips v. Fulwood,

(D.C. Cir. 2010). The complaint “is construed liberally in the [plaintiff's] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp.,

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept the plaintiff's legal conclusions. See

; Browning v. Clinton,

(D.C. Cir. 2002).

7 Accepting that the final adverse decision occurred on September 17, 2008, when

arguably plaintiff would have finally obtained vital information bearing on the existence of a

claim, the Court finds that plaintiff’s submission of the complaint for filing on January 21, 2010

was well within the two-year limitations period. Defendants’ motion to dismiss the Privacy Act

claim as time-barred therefore is denied.

3. BOP’s Exempted Files

The Privacy Act requires federal agencies to maintain records used in making

determinations “with such accuracy, relevance, timeliness, and completeness as is reasonably

necessary to assure fairness to the individual in the determination [about the individual]. . . .”

5 U.S.C. § 552a(e)(5). Section 552a(d) allows individuals access to agency records about

themselves and to request the amendment of records "they believe to be inaccurate, irrelevant,

untimely, or incomplete." Doe v. Federal Bureau of Investigation,

(D.C.

Cir. 1991). Subsections (g)(1)(A) and (C) authorize civil actions to enforce the amendment

provisions, and subsection (g)(4) provides for monetary damages, costs and attorneys’ fees where

the agency has acted intentionally or willfully. See Doe v. Fed. Bureau of Investigation,

; accord Deters v. United States Parole Comm’n,

(D.C. Cir. 1996);

Sellers v. Bureau of Prisons,

(D.C. Cir. 1992).

Notwithstanding the foregoing remedies, law enforcement agencies, such as BOP,

are authorized by statute to exempt certain record systems from certain requirements of the

Privacy Act. See Murray v. Fed. Bureau of Prisons,

(D.D.C. 2010).

It is settled that inmate records maintained by BOP, including presentence reports, have been

exempted from the Privacy Act’s accuracy and amendment requirements (subsections (d) and

8 (e)(5)) and from its damages provision (subsection (g)). See 5 U.S.C. § 552a(j) (authorizing

agencies to make exemptions);

(listing BOP exemptions); Martinez v. BOP,

(“The BOP has exempted its Inmate Central Record System from the accuracy

provisions of the Privacy Act, 5 U.S.C. § 552a(e)(5).”); White v. U.S. Probation Office,

(D.C. Cir. 1998) (“BOP inmate records systems are exempt from the amendment

provisions of the [Privacy] Act.”); Murray v. Fed. Bureau of Prisons,

(concluding that “the complaint fails to state Privacy Act claims upon which relief can be granted

with respect to . . . information maintained in the [exempted] Inmate Central Record System . . .

.”); Truesdale v. U.S. Dep’t of Justice,

(D.D.C. 2010) (citing cases);

Ramirez v. Dep’t of Justice,

(“regulations exempt BOP's Inmate Central

Records System (JUSTICE/BOP-005) . . . from subsections (d) and (g) . . . . Having exempted its

records from the substantive provision regarding the agency's recordkeeping obligations, BOP

effectively deprives litigants of a remedy for any harm caused by the agency's substandard

recordkeeping.”); Lopez v. Huff,

(D.D.C. 2007) (“To the extent that

plaintiff is seeking to have his [presentence investigation report] amended, such relief is not

available because the BOP has properly exempted its inmate central files, where such documents

are kept, from the [Privacy Act’s] amendment requirements.”) (citations omitted).

In his opposition, plaintiff asserts that he is not seeking to amend his PSR but

rather is claiming that “the [retaliatory] improper activation and aggregation of [his] federal

sentence to push up [his] custody points in order to keep [him] in the penitentiary” violates his

constitutional rights. Brief in Opp’n to Fed. Defs.’ Mot. to Dismiss [Dkt. # 24] at 7. The Privacy

Act, under which plaintiff has established he is proceeding, “allows for amendment of factual or

historical errors. It is not [as plaintiff now seems to urge] a vehicle for amending the judgments

9 of federal officials or . . . other[s] . . . as those judgments are reflected in records maintained by

federal agencies.” Kleiman v. Dep’t of Energy,

(D.C. Cir. 1992); see

Allmon v. Fed. Bureau of Prisons,

(D.D.C. 2009) (“The Privacy Act is not a

means to challenge the opinions or judgments of the agency.”). Defendants’ motion to dismiss

the Privacy Act claim under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim therefore

must be granted.

4. Challenging the PSR

As noted, in response to plaintiff’s grievance about the alleged inaccuracies in the

PSR, BOP correctly informed plaintiff on several occasions that it lacked authority to modify the

document but that it could verify the disputed information with the U.S. Probation Office that

had prepared the document. See Compl. Attach. at 6 (Regional Administrative Remedy Appeal

Part B-Response dated February 13, 2008). Plaintiff’s appeal was denied because he had not

provided “sufficient information,” for verification but merely “contended the score [was]

wrong.” Id.; see also

(Administrative Remedy Response dated April 16, 2008) (“You

cannot expect staff to submit a vague request to the probation office, claiming the entire [PSR] is

a fraud.”).

To the extent, then, that BOP had a duty to verify the accuracy of plaintiff’s PSR,

see Sellers v. Bureau of Prisons,

, the Court finds, based in part on its own

struggle to comprehend plaintiff’s claim, that BOP reasonably concluded that it lacked the level

of specificity needed to fashion an inquiry to the Probation Office. In any event, apparently the

Sellers directive to verify easily verifiable information in BOP records is no longer controlling

under the circumstances presented here, “ ‘as it was decided before the Bureau of Prisons

10 exempted the relevant system of records from the accuracy provision.’ ” Truesdale v. U.S. Dep’t

of Justice,

(quoting Lane v. Fed. Bureau of Prisons, No. 09-5228,

(D.C. Cir. Jan. 7, 2010) (per curiam)); see Clow v. Fed. Bureau of Prisons, No.

08cv01121,

, at *1 (D.D.C. July 25, 2008) (“At the time of the Sellers decision

in 1992, the BOP had not yet promulgated the regulation exempting its Inmate Central Records

System from Section (e)(5) of the Privacy Act.”) (citing

(1992)). The Court

therefore finds no violation of the Privacy Act arising from BOP’s response to plaintiff’s issues

with his PSR.

5. The Retaliation Claim

Plaintiff alleges that in December 2006, Jenifer Fultz, who was his case manager

at USP Big Sandy, retaliated against him for filing grievances against her by threatening to “give

[him] 24 points to keep him in the penitentiary settings.” Compl. at 5. The “retaliatory

fabrication of prison records would certainly meet [the] definition of a willful or intentional

Privacy Act violation – a violation ‘so patently egregious and unlawful that anyone undertaking

the conduct should have known it unlawful.’ ” Toolasprashad v. Bureau of Prisons,

(D.C. Cir. 2002) (quoting Deters v. United States Parole Commission,

);

see id., at 583 (“To state a claim for money damages under the Privacy Act . . . the plaintiff must

allege: inaccurate records, agency intent, proximate causation, and an adverse determination.”)

(internal quotation marks omitted).5

5 The Court notes that Toolasprashad may no longer be controlling because it was decided on April 19, 2002, four months before BOP’s regulation exempting its inmate files from the Privacy Act’s accuracy and damages provision went into effect. See Ramirez v. Dep’t of Justice,

& n.8 (“[U]nder 5 U.S.C. § 552a(j)(2), BOP's Inmate Central Records System is exempt from subsection (e)(5) of the Privacy Act”) (citing

(continued...)

11 Plaintiff’s retaliation claim must fail, however, because he has not stated any

facts establishing that Fultz threatened to – or did – fabricate his records and that he suffered an

adverse determination as a result of the fabrication. Nor can plaintiff credibly attribute his higher

score of 27 points upon his arrival at USP McCreary in October 2007 to Fultz or, for that matter,

to any BOP employee. See Compl. at 6 (attributing the alleged incorrect scoring to “the specific

[d]ocuments in his PSR”). In addition, plaintiff cannot credibly argue that Fultz’s alleged threat

merely to score him at 24 “would . . . inhibit an ordinary person” from exercising his First

Amendment right to file grievances. Toolasprashad v. Bureau of Prisons,

; see

(“Prisoners . . . retain their First Amendment ‘right to petition the Government for a

redress of grievances.’ ”) (quoting Turner v. Safley,

(1987)). The Court therefore

finds that plaintiff has failed to state a claim of retaliation under the Privacy Act. See Ashcroft v.

Iqbal,

(2009) (to withstand a Rule 12(b)(6) motion to dismiss, a complaint

“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’ ”) (citation omitted).

III. CONCLUSION

For the foregoing reasons, the Court concludes that it lacks subject matter

jurisdiction over plaintiff’s purported FOIA claim and that plaintiff has failed to state a claim for

relief under the Privacy Act. Therefore, the Court grants the federal defendants’ motion to

5 (...continued) (j) (effective August, 9, 2002)) (noting that “[t]he variation in language between subsections (e)(5) and (g)(1)(C) of the Privacy Act is ‘of no substantive significance.’ ”) (quoting Doe v. United States,

, 698 n.10 (D.C. Cir. 1987) (en banc)).

12 dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. A separate

Order accompanies this Opinion.

/s/_______________________ PAUL L. FRIEDMAN DATE: September 30, 2011 United States District Judge

13