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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2006 Decided March 31, 2006
No. 04-5343
ROBERT LUIZ MARTINEZ A/K/A BERK,
APPELLANT
v.
BUREAU OF PRISONS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00735)
Crystal R. Brown, Student Counsel, argued the cause as
amicus curiae in support of appellant. With her on the briefs
were Steven H. Goldblatt, appointed by the court, and Lucas R.
Moskowitz, Student Counsel.
Robert L. Martinez, pro se, was on the brief for appellant.
W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
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Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
Before: GINSBURG, Chief Judge, and ROGERS, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
PER CURIAM: Appellant Robert Luiz Martinez, a federal
prisoner assisted by amicus, seeks the correction of three
presentence reports (“PSRs”) that were prepared by the United
States Probation Office (“USPO”) and remain in his files
maintained by the Federal Bureau of Prisons (“BOP”) and the
United States Parole Commission (“USPC”). Appellant alleges
that during his criminal prosecution in 1983, a federal district
court in New York ordered certain information struck from his
PSR, and he attaches a relevant excerpt of a court transcript. He
also seeks a copy of a PSR in the BOP files, which amicus states
appellant would keep in his cell. Appellant further alleges that
the PSRs have been used to his detriment by the BOP in making
prisoner security and programmatic decisions and by the USPC
in determinating his eligibility for parole. In addition, appellant
seeks other corrections to his BOP records that refer to events he
alleges did not occur as well as copies of certain documents in
his New York case and recalculation of drug amounts in the
New York case. Appellant seeks relief, including money
damages, under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, the Privacy Act, 5 U.S.C. § 552a, and the Due
Process Clause of the Fifth Amendment to the Constitution.
The district court dismissed certain defendants named in
appellant’s pro se complaint and construed the complaint to
raise claims only under the Privacy Act and FOIA. See Order of
June 17, 2004. Subsequently, the district court granted the
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Government’s motion to dismiss the complaint. See Order of
August 25, 2004. Appellant appeals.
I.
The Government challenges this court’s jurisdiction on two
grounds. Neither ground has merit.
First, the pro se notice of appeal does not identify this court
as the court in which the appeal is to be filed. See Federal Rule
of Appellate Procedure 3(c)(1)(C). However, appellant’s
intention to appeal to this court can be inferred. See Anderson
v. District of Columbia, 72 F.3d 166, 167-69 (D.C. Cir. 1995).
The notice of appeal was filed in the district court for the
District of Columbia, whose final orders can be appealed to this
court. See 28 U.S.C. § 1291. In fact, appellant’s appeal from
the dismissal of his complaint can only be filed in this court.
Contrary to the Government’s position, the Tucker Act, 28
U.S.C. § 1491 (2005), is inapplicable to appellant’s claims.
Claims brought under statutes, such as the Privacy Act, 5 U.S.C.
§ 552a(g)(5), that independently confer jurisdiction upon the
district court and waive sovereign immunity for money claims
against the United States are not deemed to be “based on” the
Tucker Act for the purposes of determining appellate
jurisdiction. See Van Drasek v. Lehman, 762 F.2d 1065, 1070-
71 (D.C. Cir. 1985); cf. Sellers v. Bureau of Prisons, 959 F.2d
307, 311 (D.C. Cir. 1992); Doe v. United States, 821 F.2d 694,
699-700 (D.C. Cir. 1987) (en banc). Neither FOIA nor the Due
Process Clause provides a substantive right to compensation
from the United States, which would be necessary to support a
claim under the Tucker Act. See United States v. Mitchell, 463
U.S. 206, 216-17 (1983); see also Van Drasek, 762 F.2d at 1070.
Because the Tucker Act does not apply, appellant could not file
his appeal in the United States Court of Appeals for the Federal
Circuit under 28 U.S.C. § 1295(a)(2).
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Second, the pro se notice of appeal mentioned only the
August 25, 2005 Order dismissing the complaint. Nonetheless,
under either of two approaches, this court has jurisdiction to
review the interlocutory June 17, 2003 Order dismissing all
defendants except the BOP and construing the complaint to raise
claims under the Privacy Act and FOIA. By appealing from the
final appealable order of August 25, 2005 dismissing the
complaint, appellant has brought before this court the
interlocutory June 17, 2003 Order. See, e.g., Ciralsky v. CIA,
355 F.3d 661, 668 (D.C. Cir. 2004). Alternatively, appellant’s
intention to appeal from both rulings of the district court can be
fairly inferred from his notice of appeal and no appellee is
prejudiced. See 16A WRIGHT ET AL., FEDERAL PRACTICE &
PROCEDURE, JURISDICTION § 3949.4 (3d ed. 1999). The notice
of appeal stated it was “a NOTICE OF APPEAL FOR CIVIL
ACTION NO. 03-0735,” i.e., a notice of an appeal of the entire
case. Although the notice listed only the dismissal order dated
August 25, 2004, appellant was proceeding pro se and that was
the only order designated by the district court as a final
appealable order. See Toolasprashad v. Bureau of Prisons, 286
F.3d 576, 583 (D.C. Cir. 2002); cf. Warren v. District of
Columbia, 353 F.3d 36, 37-38 (D.C. Cir. 2004); Kalka v. Hawk,
215 F.3d 90, 94 n.5 (D.C. Cir. 2000). On appeal, the dismissed
parties and the USPC are represented by the United States
Attorney, who has presented their arguments and shown no
evidence that the dismissed parties would be prejudiced if
appellant’s challenges to the June 17, 2004 order were addressed
by this court. Cf. Simpkins v. District of Columbia, 108 F.3d
366, 370 (D.C. Cir. 1997).
Brookens v. White, 795 F.2d 178 (D.C. Cir. 1986) (per
curiam), on which the Government relies to argue that only the
Order of August 25, 2005 is properly before the court, is
inapposite. In Brookens, the district court had granted summary
judgment in two instances, against different parties. See id. at
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179. Although this court had jurisdiction over both final
judgments, the court declined to exercise jurisdiction over one
of the final judgments on the prudential ground that parties to
that order would be prejudiced. See id. at 180 (citing J. MOORE
& B. WARD, MOORES’S FEDERAL PRACTICE § 203.18 (2d ed.
1985) (footnotes omitted)); see also Appeal of District of
Columbia Nurses’ Ass’n, 854 F.2d 1448, 1450 (D.C. Cir. 1988).
No such prejudice threatens here. The district court dismissed
the individuals who were named as defendants in the complaint
before the service of process. See Prison Litigation Reform Act,
Pub. L. No. 104-134, §§ 801-10, 110 Stat. 1321 (2005); 28
U.S.C. § 1915A(a)-(b), (e)(2). The USPC was not named in the
complaint as a defendant. Hence, the individuals and the USPC
were never parties in the district court.
The Government also maintains that the individual
defendants and the Government itself suffered prejudice by
virtue of the fact that they were not afforded the opportunity to
argue before the district court that an appeal would not have
been taken in good faith. The Government speculates that the
district court could have concluded that appellant’s appeal, to
the extent it included the June 17, 2003 Order, was not taken in
good faith and thus would have denied appellant leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a)(3). The
only statutory requirement to proceed in forma pauperis is good
faith and does not require that the underlying claim be
meritorious. See Ellis v. United States, 356 U.S. 674, 674
(1958) (per curiam). The district court did not rule that the
complaint was frivolous, and on appeal the Government fails to
point to any basis for concluding that the district court lacked an
adequate opportunity to consider whether the appeal was taken
in good faith. Cf. United States v. Godines, 433 F.3d 68, 71
(D.C. Cir. 2006) (per curiam).
II.
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Appellant contends that the district court erred in dismissing
all named defendants except the BOP, in construing the
complaint to raise claims only under the Privacy Act and FOIA,
and in denying relief. For the following reasons, we disagree.
First, the 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. See Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657
(D.C. Cir. 1996); 5 U.S.C. § 552(a)(4)(B) (authorizing suit
against an “agency”) 5 U.S.C. § 552a(g)(1) (same); see also
Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987). Both
statutes concern the obligations of agencies as distinct from
individual employees in those agencies.
Second, the district court properly dismissed USPC as a
defendant because the allegations in the complaint could not
sustain the finding of willfulness necessary to prevail under the
Privacy Act. See Deters, 85 F.3d at 657. Contrary to
appellant’s implicit assumption, the excerpt from the transcript
attached to his complaint does not show that a court had ordered
the USPC to delete data from its records. Hence, he cannot
show a violation of a court order, which could establish
willfulness. See id.
Third, the district court properly dismissed appellant’s
claims against the 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). See 28 C.F.R. § 16.97(j).
Appellant does not challenge the BOP’s authority to exempt its
records, and the BOP did not expressly waive the exemption.
Even if it had waived the exemption, the record shows that the
BOP provided a reasonable explanation for its refusal to correct
its records as appellant requested. The BOP contacted the USPC
and the USPO and was advised that the BOP’s records regarding
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appellant were accurate. The excerpt from the transcript
attached to his complaint does not show that a court had ordered
the BOP to delete certain data from its records.
Fourth, the district court properly dismissed appellant’s
claims under FOIA. In Oglesby v. U.S. Dep’t of the Army, 920
F.2d 57 (D.C. Cir. 1990), the court held that the National
Archives and Records Administration had fulfilled its FOIA
obligation when it provided records for Oglesby’s review in its
public reading room. See id. at 70. The court reasoned that an
agency “‘need not respond to a FOIA request for copies of
documents where the agency itself has provided an alternative
form of access,’” Id. at 70 (quoting Tax Analysts v. U.S. Dep’t
of Justice, 845 F.2d 1060, 1065 (D.C. Cir. 1988), affirmed, 492
U.S. 136 (1989)). The record shows that appellant was afforded
a meaningful opportunity to review his PSRs and to take notes
on them. Indeed, he does not dispute this. Hence, FOIA does
not entitle him to have copies of his PSRs. Moreover, the BOP
Program Statement 1351.05 p.15, available at
http://www.bop.gov/DataSource/execute/dsPolicyLoc, which
sets forth reasons, based on concerns about inmate safety, for
prohibiting inmates from keeping copies of their PSRs in their
cells and reflects a judgment regarding prison administration
that a court would be loath to second-guess. See Bell v. Wolfish,
441 U.S. 520, 531 (1979); Procunier v. Martinez, 416 U.S. 396,
405 (1974).
Finally, the district court did not err in construing the
complaint as raising claims only under the Privacy Act and
FOIA because the complaint alleges no viable Due Process
claims. See Alicke v. MCI Commc’ns Corp., 111 F.3d 909, 912
(D.C. Cir. 1997). Although appellant mentions “due process”
three times in his complaint, claiming that due process affords
him the right to a hearing, he does not allege that any defendant
violated his due process rights by failing to correct the three
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PSRs in the manner he requests or by relying on them when
making status, programmatic, and penal determinations.
Amicus concedes that appellant’s due process claims do not
allege violation of a court order but nonetheless maintains that
the BOP and the USPC “should be under an obligation to note
the nature of [appellant’s] challenges to the inaccuracies
contained [in his records], similar to the process he would have
been entitled to under the Privacy Act.” Amicus Br. at 56.
Amicus cites no authority for the proposition that the failure to
correct the alleged record inaccuracies rises to the level of a due
process violation where the BOP has made reasonable inquiries
and received confirmation of the accuracy of its records; hence,
amicus’s reliance on Doe, 821 F.2d at 701, is misplaced. The
complaint does not show that USPC or its officers had been
ordered by a federal district court to correct their records and,
thus, appellant cannot rely on violation of a court order as the
basis for a due process claim. For similar reasons, amicus’s
reliance on Butera v. District of Columbia, 235 F.3d 637, 651
(D.C. Cir. 2001), is misplaced as appellant alleges no facts that
would constitute a substantive due process violation but at most
only negligence in record keeping. Additionally, the allegations
in the complaint and the attached excerpt from a transcript
provide no basis for the award of injunctive relief under Bell v.
Hood, 327 U.S. 678, 684 (1946).
Accordingly, we affirm the judgment dismissing the
complaint.