United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2009 Decided October 27, 2009
No. 05-5284
FRANK A. SKINNER,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE AND BUREAU OF
PRISONS,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01376)
Yvonne M. Williams, appointed by the court, argued the
cause as amicus curiae in support of appellant. With her on the
brief was Anthony F. Shelley, appointed by the court.
Frank A. Skinner, pro se, filed the briefs for appellant.
W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney at the time the brief was filed, and R.
Craig Lawrence, Assistant U.S. Attorney. Lisa S. Goldfluss,
Assistant U.S. Attorney, entered an appearance.
2
Before: GARLAND, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: A Bureau of Prisons hearing
officer found prisoner Frank Skinner guilty of possessing drug
paraphernalia and imposed sanctions that included the loss of 40
days of good-time credits. Skinner sued the agency under the
Privacy Act, 5 U.S.C. § 552a, seeking damages and amendment
of his prison records. The district court dismissed both claims
on the ground that inmate records are exempt from the relevant
provisions of the Act. We affirm that reasoning with respect to
Skinner’s claim for amendment of his records. We affirm the
court’s dismissal of Skinner’s damages claim on the alternative
ground that such a claim is not cognizable unless Skinner first
secures relief through a writ of habeas corpus.
I
Frank Skinner is a federal prisoner who was housed at a
Bureau of Prisons (BOP) facility in Atlanta, Georgia. On
November 27, 2001, staff at the facility searched Skinner’s cell
and locker and found a white powder that tested positive for
cocaine. Skinner v. U.S. Dep’t of Justice, No. 04-1376, 2005
WL 1429255, at *1 (D.D.C. filed June 20, 2005). BOP
conducted an internal disciplinary hearing on January 28, 2002.
At the hearing, Skinner testified that the substance found in his
locker was “[T]ide washing powder,” which the hearing officer
noted in his report. See Discipline Hearing Officer Report (Feb.
5, 2002). The officer, however, found that Skinner had actually
possessed cocaine and imposed sanctions that included the loss
3
of 40 days of good-time credits,1 60 days of disciplinary
segregation, the denial of visitation rights for a year, and the
denial of commissary privileges for 180 days. BOP also
referred the matter to the FBI, which declined to prosecute
Skinner because the case would not “result in a criminal
prosecution of greater penal consequences than which can be
imposed by the BOP administrative remedies and actions.”
Letter from T. Jackson to G. Duncan (Feb. 12, 2002).
Skinner filed a number of administrative appeals within
BOP, and on July 8, 2002, he also filed a Freedom of
Information Act request with the FBI. The FBI informed
Skinner that its records contained 18 pages that were responsive
to his request. Because the documents had originated with BOP,
the FBI referred the request to BOP, which released the
documents to Skinner on August 15. One of the documents was
the referral form BOP had sent to the FBI. The form contained
a typed paragraph stating that chemical tests conducted by BOP
indicated the white powder in Skinner’s locker was cocaine.
Below that paragraph was the following handwritten notation:
“Actually laundry detergent.” Referral of an Inmate Matter for
Investigation (Dec. 12, 2001). There is no evidence in the
record regarding who made the notation or what was meant by
it. Skinner alleges that it reflects the results of an
“independ[e]nt analysis” of the powder by the FBI, Pl.’s Mot. to
Alter or Amend J. at 2, but also acknowledges that “[n]one of
the suspected contraband was forwarded” to the FBI “for
laboratory testing,” Pl.’s Authentication or Identification to
Compl. Doc. Ex. “A.”
1
Pursuant to 18 U.S.C. § 3624(b), a federal prisoner who
complies with disciplinary regulations is eligible to receive credits --
known as good-time credits -- of up to 54 days per year toward the
service of the prisoner’s sentence.
4
On August 13, 2004, Skinner filed a pro se complaint in the
United States District Court for the District of Columbia,
alleging that the powder found in his locker was laundry
detergent rather than cocaine, that the FBI referral form
indicated as much, and that his BOP file was therefore
inaccurate. He requested two remedies under the Privacy Act,
5 U.S.C. § 552a. First, he sought money damages for the
punishments BOP had imposed on the basis of its finding that he
possessed cocaine. Second, Skinner alleged that the “[a]genc[y]
did not meet requirements of [the] Privacy Act by indicating that
[the] inmate disputed information in his files.” Compl. at 1.
The district court treated this as a request for amendment of
Skinner’s records. Skinner, 2005 WL 1429255, at *1 & n.2.
BOP filed a motion to dismiss for failure to state a claim or,
in the alternative, for summary judgment. BOP argued, first,
that the complaint should be dismissed because BOP had
exempted inmate records from the relevant provisions of the
Privacy Act. Second, BOP maintained that Skinner’s
amendment claim was barred because he had failed to exhaust
administrative remedies. Finally, in a footnote, BOP offered a
“third and independent ground for dismissal.” Citing Razzoli v.
Bureau of Prisons, 230 F.3d 371 (D.C. Cir. 2000), the agency
contended that Skinner’s “claims could only be filed in the
context of a habeas corpus action.” Mem. in Support of Defs.’
Mot. to Dismiss and/or for Summ. J. at 10 n.2. On June 20,
2005, the district court granted the motion to dismiss on the first
ground urged by BOP: that the records were exempt.
On July 12, 2005, Skinner filed an appeal of that judgment,
and on August 5 he filed a “Motion to Alter or Amend
Judgment” with the district court, arguing that the disciplinary
hearing he was challenging had taken place before BOP
promulgated the exemption that the court applied to his damages
claim. A panel of this court ordered the appeal held in abeyance
5
so that the district court could consider Skinner’s motion, which
the district court ultimately denied on March 31, 2008. On
October 16, 2008, BOP filed a motion for summary affirmance
in this court, which we denied. Thereafter, we appointed amicus
curiae to present arguments in support of Skinner’s position.
II
The Privacy Act imposes a set of substantive obligations on
agencies that maintain systems of records, including the
requirement that records used in making determinations about
individuals be accurately maintained. See 5 U.S.C. § 552a(e)(5).
The Act also provides civil remedies for its violation, including
court-ordered amendment of records and money damages. The
district court dismissed both Skinner’s amendment and damages
claims for failure to state a claim upon which relief can be
granted. See FED. R. CIV. P. 12(b)(6). Our review is therefore
de novo. Razzoli, 230 F.3d at 374. We address Skinner’s claim
for amendment in Part II.A and his claim for damages in Part
II.B.
A
Skinner’s suit seeks amendment of his inmate records,
although the kind of amendment he seeks is not entirely clear.
In places, Skinner’s pleadings appear to request an amendment
indicating that he possessed laundry detergent rather than
cocaine. See Amicus Curiae Br. 11 (noting that Skinner filed
administrative appeals “to have his records amended to
accurately reflect that the substance found in his locker was
laundry detergent”). In other places, the pleadings suggest that
he merely wants his file to include the form containing the
handwritten notation, “[a]ctually laundry detergent.” See
Amicus Curiae Reply Br. 5. Regardless of the nature of the
amendment sought, this claim is quickly dispatched.
6
Privacy Act § 552a(e)(5) requires agencies to ensure that
any records used in “making any determination about any
individual” are “maintain[ed] . . . with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to
assure fairness to the individual in the determination.” 5 U.S.C.
§ 552a(e)(5). Section 552a(d) requires agencies to entertain
requests for amendment of records that are not “accurate,
relevant, timely, or complete.” Id. § 552a(d)(2). If an agency
rejects a request for amendment, the subject of the contested
record can bring suit in federal court and obtain de novo
consideration of whether amendment is warranted. Id.
§ 552a(g)(1)(A), (g)(2)(A). If the court so finds, it “may order
the agency to amend the individual’s record.” Id.
§ 552a(g)(2)(A); see generally Doe v. United States, 821 F.2d
694, 697 & n.8 (D.C. Cir. 1987) (en banc).
But the Privacy Act also permits agencies to exempt certain
of their systems of records from many of the obligations it
imposes. 5 U.S.C. § 552a(j). In 1976, BOP exempted its Inmate
Central Records System from § 552a(d)’s amendment provision.
See 28 C.F.R. § 16.97(a); Exemption of Record Systems Under
the Privacy Act, 41 Fed. Reg. 12,640, 12,650 (Mar. 26, 1976).
As the district court found, as our precedents make clear, and as
amicus acknowledged at oral argument, that exemption prevents
us from ordering the amendment of an inmate’s records. See
White v. U.S. Probation Office, 148 F.3d 1124, 1125 (D.C. Cir.
1998); Risley v. Hawk, 108 F.3d 1396, 1397 (D.C. Cir. 1997);
Oral Arg. Recording at 2:48-3:12. Accordingly, we affirm the
district court’s dismissal of Skinner’s amendment claim.
B
Skinner also seeks damages for the consequences of the
alleged inaccuracy in his records.
7
As we have noted, Privacy Act § 552a(e)(5) requires
agencies to ensure that all records “used by the agency in
making any determination about any individual” are maintained
“with such accuracy, relevance, timeliness, and completeness as
is reasonably necessary to assure fairness to the individual in the
determination.” 5 U.S.C. § 552a(e)(5). Section 552a(g)(1)(C)
permits an individual to bring a civil action against an agency if
the agency “fails to maintain any record concerning [the]
individual with such accuracy, relevance, timeliness, and
completeness” and “consequently a determination is made
which is adverse to the individual.” Id. § 552a(g)(1)(C). If the
court finds that the agency “acted in a manner which was
intentional or willful,” the United States is liable for “actual
damages sustained by the individual as a result of” the agency’s
failure to properly maintain the record. Id. § 552a(g)(4); see
generally Doe, 821 F.2d at 697 n.8. In sum, to make out a claim
for damages, a “plaintiff must allege: inaccurate records, agency
intent, proximate causation, and an ‘adverse determination.’”
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C.
Cir. 2002); see Deters v. U.S. Parole Comm’n, 85 F.3d 655, 657
(D.C. Cir. 1996).
The district court dismissed Skinner’s damages claim on the
same ground upon which it dismissed his amendment claim: that
BOP had exempted inmate records from the provisions of the
Privacy Act. But while BOP’s 1976 regulation exempted prison
records from Privacy Act § 552a(d), the provision regarding
amendment of inaccurate records, that regulation did not exempt
BOP records from § 552a(e)(5), the provision creating the duty
to accurately maintain records “used . . . in making any
determination.” See Deters, 85 F.3d at 658 n.2; Phillips v.
Hawk, No. 98-5513, 1999 WL 325487, at *1 (D.C. Cir. Apr. 14,
1999). And as we explained in Sellers v. Bureau of Prisons, the
damages provision of Privacy Act § 552a(g) provides a remedy
for violations of § 552a(e)(5). 959 F.2d 307, 310 (D.C. Cir.
8
1992); see Deters, 85 F.3d at 657.
On August 9, 2002, BOP did promulgate a regulation
exempting its records from § 552a(e)(5). See 28 C.F.R.
§ 16.97(j); Privacy Act of 1974: Implementation, 67 Fed. Reg.
51,754 (Aug. 9, 2002). Skinner’s lawsuit was filed after that
date, but his complaint is premised on a BOP disciplinary
determination that took place seven months earlier. As a
consequence, Skinner contends that it would be impermissibly
retroactive to apply the § 552a(e)(5) exemption to his lawsuit.
We need not resolve this issue, however, because there is
another ground for dismissal that is clearly established by a
series of decisions of both the Supreme Court and this circuit.
Under those precedents, Skinner’s civil damages claim is barred
unless and until he successfully challenges the disciplinary
hearing on which it is based through an action in habeas corpus.
The series of cases begins with Preiser v. Rodriguez, in
which the Supreme Court held that a state prisoner cannot sue
prison authorities under 42 U.S.C. § 19832 for injunctive relief
to compel restoration of good-time credits because victory in
such a suit would shorten the prisoner’s sentence. 411 U.S. 475
(1973). As the Court explained, when a “state prisoner is
2
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.
9
challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he
is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas
corpus” even if his claim comes within the literal terms of
§ 1983. Id. at 500; see id. at 489-90. In Heck v. Humphrey, the
Court extended this rule to a § 1983 suit seeking money
damages -- but neither an injunction nor release -- for an
unconstitutional conviction. 512 U.S. 477, 479, 487 (1994).
Heck instructed courts to dismiss such a damages action if
success would “necessarily imply the invalidity of [the]
conviction or sentence[,] . . . unless the plaintiff can demonstrate
that the conviction or sentence has already been invalidated” --
for example, by reversal on direct appeal or issuance of a writ of
habeas corpus. Id. at 487.
In Edwards v. Balisok, the Court applied Preiser and Heck
to a case analogous to Skinner’s: a state prisoner’s § 1983
challenge to the procedures employed in a disciplinary
proceeding that resulted in revocation of his good-time credits.
520 U.S. 641 (1997). The prisoner sought neither restoration of
those credits nor damages for their loss; he sought only damages
for violations of procedural due process at his hearing. Id. at
645. Nonetheless, the Court concluded that his action was
barred because “[t]he principal procedural defect complained of
. . . would, if established, necessarily imply the invalidity of the
deprivation of his good-time credits,” and would therefore
shorten his sentence “absent a new hearing.” Id. at 646-47. The
prisoner had alleged that his hearing officer, motivated by
“deceit and bias,” id. at 647, had “concealed exculpatory witness
statements” and otherwise denied him the opportunity to defend
himself, id. at 644, 646. If those allegations were proven, the
Court said, the disciplinary decision could not stand. See id. at
647. Accordingly, “‘a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence.’”
10
Id. at 643 (quoting Heck, 512 U.S. at 487).
In Muhammad v. Close, the Court summarized this line of
cases as follows. “Challenges to the validity of any confinement
or to particulars affecting its duration are the province of habeas
corpus . . . .” 540 U.S. 749, 750 (2004). If success in a
“damages action would implicitly question the validity of
conviction or duration of sentence, the litigant must first achieve
favorable termination of his available state, or federal habeas,
opportunities to challenge the underlying conviction or
sentence.” Id. at 751.
The Preiser-Heck-Balisok trilogy involved suits by state
prisoners under 42 U.S.C. § 1983. In Razzoli v. Bureau of
Prisons, this court applied Balisok to a federal prisoner’s claim
for damages under the Privacy Act’s accuracy provisions.
Prison officials had found cocaine and a razor blade in Razzoli’s
cell and imposed “a sanction that included the loss of 60 days
statutory good time credit.” 230 F.3d at 373. Razzoli alleged
“that the BOP staged the incident.” Id. at 373. “The theory of
Razzoli’s Privacy Act claim,” we explained, was “that BOP and
the Parole Commission violated 5 U.S.C. § 552a(e)(5) by
maintaining in their files and using a false record, the report of
the drug possession incident, even though they knew it to be
false.” Id. at 374. We concluded that this claim “clearly runs
afoul of Balisok” because, “[i]f BOP knowingly preserved and
acted upon a totally invented record of drug possession, plainly
the recision of good time would have to be overturned, thus
accelerating Razzoli’s release.” Id.3 Accordingly, we affirmed
the dismissal of Razzoli’s Privacy Act claim, instructing that he
3
Although we noted that there was “the possibility of renewed
revocation of the good time credit in a new [untainted] hearing,” that
possibility did not change the analysis. Razzoli, 230 F.3d at 375; see
Balisok, 520 U.S. at 646-47.
11
could refile it only if he were “successful in overturning [BOP’s]
actions through a petition for habeas.” Id. at 376.4
Skinner’s claim for damages under the Privacy Act is
virtually indistinguishable from the claims barred in Balisok and
Razzoli. In order to obtain damages, Skinner must allege that
“the agency acted in a manner which was intentional or willful.”
5 U.S.C. § 552a(g)(4). And he does, contending that BOP
“willfully relied upon incomplete and inaccurate records to
discipline him unfairly for allegedly possessing cocaine.”
Amicus Curiae Br. 3; see id. at 9-10; Compl. at 3-4. In
particular, Skinner asserts that “BOP fabricated its drug test
results” and “purposely excluded the [allegedly exculpatory]
Referral Form from [his] records in order to retaliate against or
otherwise punish him” for an assault complaint he had filed
against a prison guard. Amicus Curiae Br. 28-29; see id. at 28
(citing Compl. at 2-3); Pl.’s Mot. to Alter or Amend J., Ex. A
(Regional Administrative Remedy Appeal). But “the due
process requirements for a prison disciplinary proceeding are . . .
not so lax as to let stand the decision of a biased hearing officer
who dishonestly suppresses evidence of innocence.” Balisok,
520 U.S. at 647. If Skinner were to succeed in demonstrating
that BOP intentionally or willfully maintained and acted upon a
false record of drug possession, “plainly the recision of good
time would have to be overturned, thus accelerating [Skinner’s]
release.” Razzoli, 230 F.3d at 374. As a consequence, he must
first proceed in habeas, notwithstanding that in this case he
seeks only damages and not restoration of good time. Id. at 372-
73; cf. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (holding
4
See White, 148 F.3d at 1125 (holding that a prisoner’s claim for
damages under the Privacy Act, alleging that his presentence report
contained inaccuracies requiring him to serve more time, was not
cognizable “unless the sentence has been invalidated in a prior
proceeding”).
12
“that a state prisoner’s § 1983 action is barred (absent prior
invalidation) -- no matter the relief sought (damages or equitable
relief) . . . -- if success in that action would necessarily
demonstrate the invalidity of confinement or its duration” (first
emphasis added)).
Skinner contends that, even if his claim for damages for loss
of good time must first proceed in habeas, the same is not true
of his claims for “damages for other, separate disciplinary
harms.” Amicus Curiae Reply Br. 27. But although those other
punishments -- namely, disciplinary segregation and the loss of
visitation rights and commissary privileges -- did not affect the
length of Skinner’s incarceration, they are not “separate” from
the punishment that did. As Skinner’s complaint avers, all of his
punishments resulted from the same “Incorrect Information” in
his file -- and from the same finding of guilt at the same hearing
on the basis of that information. Compl. at 1.5 Amicus
conceded as much at oral argument.6 Hence, because recovery
for the “other, separate disciplinary harms” depends on
overturning the adverse determination that also led to his loss of
good-time credits, if Skinner were to win damages for the
former, he would necessarily have demonstrated the invalidity
of the latter.
5
See Compl. at 3 (complaining of the “adverse effect in record
determining custody, classification, job, quarter assignment and the
los[s] of forty (40) days good conduct credits”); Amicus Curiae Br. 7
(stating that, “[a]s a result” of the hearing officer’s determination that
Skinner was guilty, he “was denied visitation for a year, denied
commissary privileges for 180 days, his good time credit was
discounted 40 days, and he was placed in segregation or solitary
confinement for 60 days”).
6
See Oral Arg. Recording at 6:22-50 (agreeing that the good time,
segregation, and commissary sanctions were all based on the same
finding that Skinner possessed cocaine rather than detergent).
13
Amicus insists that it is nonetheless possible to distinguish
the two types of discipline. In amicus’ view, we need not
determine that the white powder was detergent rather than
cocaine to vindicate Skinner’s damages claim; we need only
find that the records at Skinner’s hearing were inaccurate or
incomplete because they omitted the referral form. Had the
hearing officer seen the form, amicus continues, that might have
been enough to keep him from ordering Skinner held in
segregation, even if not enough to prevent him from revoking
Skinner’s good-time credits. Amicus Curiae Reply Br. 28. But
even on this theory, to obtain damages for being held in
segregation Skinner still must show that BOP intentionally or
willfully kept the allegedly exculpatory FBI form out of his
disciplinary hearing. See 5 U.S.C. § 552a(g)(4); Amicus Curiae
Reply Br. 3 (arguing that Skinner’s “prison segregation [was]
based on willfully inaccurate records”). And as we have
explained above, if he were to succeed in making such a
showing, that would “necessarily imply the invalidity of the
deprivation of his good-time credits” as well, Balisok, 520 U.S.
at 646-47. See Razzoli, 230 F.3d at 374.7
Finally, amicus urges us not to apply the habeas-channeling
rule here because the district court did not rely on it. Instead,
the court rested dismissal of Skinner’s complaint on BOP’s
7
Although Razzoli recognized that a state prisoner is confined to
habeas only if his successful claim would “necessarily imply” a
shorter period of confinement, 230 F.3d at 375 (internal quotation
marks omitted), it held that habeas is exclusive for a federal prisoner
“even when a non-habeas claim would have a merely probabilistic
impact on the duration of custody,” id. at 373. See Davis v. Bureau of
Prisons, No. 08-5053, 2009 WL 1791872, at *1 (D.C. Cir. June 5,
2009). This aspect of Razzoli is not relevant here because -- as
discussed in the text -- Skinner’s success in a damages action would
necessarily imply the invalidity of the revocation of his good-time
credits.
14
exemption of its records from the Privacy Act. But this court
can “affirm a correct decision even if on different grounds than
those assigned in the decision on review,” a principle
“particularly applicable when reviewing a dismissal for failure
to state a claim, [which is] a pure question of law which we
review de novo.” Razzoli, 230 F.3d at 376 (internal quotation
marks and citations omitted). Amicus does not dispute our
authority in this regard, but correctly notes that we generally do
not decide cases on grounds that were not raised in the district
court, absent exceptional circumstances. See Kurke v. Oscar
Gruss and Son, Inc., 454 F.3d 350, 358 & n.8 (D.C. Cir. 2006).
Indeed -- as amicus also correctly points out -- the Supreme
Court held in Muhammad v. Close that the government had
waived a habeas exclusivity argument by failing to raise it
below. 540 U.S. at 755.
But here the government did raise the habeas argument in
the district court, identifying it as a “third and independent
ground for dismissal.” Mem. in Support of Defs.’ Mot. to
Dismiss and/or for Summ. J. at 10 n.2. Although the
government raised the point only in a footnote, that footnote
cited the controlling precedent -- Razzoli -- and expressly
“reserve[d] the right to brief [the habeas] point at some later
stage of the litigation if such stage should come to pass.” Id.
That later stage never came to pass in the district court because
the court ruled for the government on the basis of the exemption.
But that stage has come in this court, and both the government
and Skinner (and amicus) have had a full opportunity to brief the
issue. Moreover, this case is not like Muhammad, where the
government’s habeas argument depended on a disputed question
of fact -- whether the plaintiff had actually lost any good-time
credits. 540 U.S. at 754-55. Rather, BOP’s argument here
raises only legal questions that we decide de novo. Thus, there
is no unfairness in our affirming on this alternative ground. Cf.
United States v. Bowman, 496 F.3d 685, 695 n.2 (D.C. Cir.
15
2007) (noting that an appellate court may not affirm on a ground
not relied upon by the district court if doing so would “unfairly
deprive [the plaintiff] of an adequate opportunity to respond”).
III
We affirm the district court’s dismissal of Skinner’s claim
for amendment of his records on the ground that those records
are exempt from the amendment provision of the Privacy Act.
We affirm the court’s dismissal of Skinner’s damages claim
because such a claim is not cognizable unless Skinner first
secures relief through a writ of habeas corpus.
So ordered.