UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
WILLIAM R. BROOKS, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1788 (PLF)
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
This matter is before the Court on defendant’s motion to dismiss for failure to
state a claim [ECF No. 10]. 1 For the reasons discussed below, the motion will be granted.
I. BACKGROUND
Plaintiff is in the custody of the Federal Bureau of Prisons (“BOP”) serving a term
of 85 months’ incarceration. As described by Judge Gwin in his opinion denying plaintiff’s
motion under 28 U.S.C. § 2255 to vacate or correct his sentence:
On March 27, 2008, a federal grand jury indicted Petitioner
Brooks and two co-defendants, for, among other things, conspiracy
and bank fraud . . . . [T]he government filed a superseding
indictment against Brooks, and Brooks appeared pro se during the
arraignment hearing on the superseding indictment.
1
Plaintiff’s Request to Enter Default of Department of Justice [ECF No. 17] will be
denied. Defendant requested, and the Court granted, an extension of time to May 15, 2013 to file
its Reply, and defendant filed its Reply on that date.
A jury trial was scheduled to commence on April 2, 2009.
But on the day of trial, Brooks changed his plea and entered into a
plea agreement. With the plea agreement, Brooks agreed to plead
guilty to all seventeen counts. The court sentenced Brooks to a
term of 85 months’ incarceration on Counts one through seventeen,
to be followed by a five-year term of supervised release.
Brooks v. United States, No. 1:08-CR-141, 2012 WL 3075129, at *1 (N.D. Ohio July 28, 2012)
(citations and footnote omitted).
In his complaint in the instant case, plaintiff sets forth many more legal
conclusions than factual allegations. 2 Upon review of the exhibits plaintiff has attached to his
complaint, it is apparent that he is challenging the accuracy of information in the presentence
investigation report (“PSI”) prepared in connection with his prior offense conduct. See generally
Compl. at 7-10; see id., Ex. (Privacy Act Request) [ECF No. 1 at 20]. Specifically, plaintiff
objects to “the offense conduct detailed in paragraphs 86 an[d] 90” of the PSI with respect to
“two questioned offenses (Aggravated Assault in Case No. CR300707 and Domestic Violence in
Case No. CR442393, both cases in the Cuyahoga County Court of Common Pleas).” Compl.,
Ex. (Letter to plaintiff from Keith Schutter, Supervising U.S. Probation Officer, United States
Probation Office for the Northern District of Ohio, dated February 7, 2012) [ECF No. 1 at 10].
Plaintiff later opines that, based on his prior state convictions, the judge “sentenced [him] to the
mid-point of the advisory guideline range due to his propensity to commit violent acts as denoted
in the [PSI].” Pl.’s Resp. to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 7. According to plaintiff,
2
Plaintiff submitted his pleading on a preprinted form designed for the filing of a petition
for a writ of habeas corpus under 28 U.S.C. § 2241. The Court construed the pleading as a civil
complaint under the Privacy Act against the United States Department of Justice. Plaintiff has
not numbered his exhibits, and the Court identifies them by the page numbers designated by the
Court’s Electronic Filing System (“ECF”).
2
the Federal Bureau of Prisons (“BOP”), in turn, allegedly relied on this inaccurate retelling of
plaintiff’s offense conduct and, for that reason, deemed him ineligible for designation to “a lower
security facility . . . closest to his release residence that would allow for better family ties.” Id.
According to plaintiff, BOP failed to ensure the accuracy of information in its
records about him, Compl. at 7 (Ground One), notwithstanding submission of official plea
hearing transcripts to support his challenge, id. at 8 (Ground Three), and it intentionally
continues to maintain such false records so as to cause him “adverse harm and injury.” Id. at 9
(Ground Four). Plaintiff demands amendment of the false information contained in the PSI and
reinstatement of “all rights, privileges, and benefits to which [he] would have . . . been entitled.”
Id. at 9 (Request for Relief). 3 The Court presumes that, through this litigation, plaintiff seeks
reassessment of his custody classification by BOP and a designation to a lower security facility.
See id., Ex. (Request for Administrative Remedy and responses of the Warden of FCI McDowell
and the Director of the Mid-Atlantic Region) [ECF No. 1 at 26-30].
3
In Ground Two, plaintiff alleges that the United States Probation Office (“USPO”)
“deprived [him] of Due Process when it failed to provide a written response” to his request that
the USPO investigate plaintiff’s challenge. Compl. at 8 (Ground Two). As an arm of the federal
courts, the USPO is not subject to the Privacy Act. See Kates v. King, No. 12-1835, 2012 WL
2583374, at *2 (3d Cir. July 5, 2012) (per curiam), cert. denied, 133 S. Ct. 793 (2012); Fuller-
Avent v. U.S. Prob. Office, 226 F. App’x 1, 2 (D.C. Cir. 2006). Furthermore, plaintiff’s
constitutional claim arising from alleged violations of the Privacy Act is not cognizable because
such a claim is “encompassed within the Privacy Act’s comprehensive remedial scheme.”
Griffin v. Ashcroft, No. 02-5399, 2003 WL 22097940, at *2 (D.C. Cir. Sept. 3, 2003) (per
curiam) (citations omitted).
3
II. DISCUSSION
“The Privacy Act regulates the collection, maintenance, use, and dissemination of
information about individuals by federal agencies.” Wilson v. Libby, 535 F.3d 697, 707 (D.C.
Cir. 2008) (internal quotation marks and citations omitted). Subsection (e)(5) of the Privacy Act
requires that an agency “maintain all records which are used by the agency in making any
determination about any individual with such accuracy, relevance, timeliness, and completeness
as to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). An
individual may request access to and amendment of an agency’s records or information in a
system of records pertaining to him. See id. § 552a(d). That individual may file a civil action
against an agency which “makes a determination . . . not to amend an individual’s record in
accordance with his request,” id. § 552a(g)(1)(A), or if the agency:
fails to maintain any record concerning any individual with such
accuracy, relevance, timeliness, and completeness as is necessary
to assure fairness in any determination relating to the
qualifications, character, rights, or opportunities of, or benefits to
the individual that may be made on the basis of such record, and
consequently a determination is made which is adverse to the
individual.
Id. § 552a(g)(1)(C). And if the Court determines that the agency’s actions were willful or
intentional, it may award actual damages sustained by the individual as a result of the agency’s
failure to maintain its records with the requisite level of accuracy, and further may award costs of
the action and attorney fees. Id. § 552a(g)(4).
4
An agency head may promulgate regulations to exempt any system of records
within the agency from any part of the Privacy Act, except subsections (b), (c)(1) and (2),
(e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i), if the system of records is:
maintained by an agency or component thereof which performs as
its principal function any activity pertaining to the enforcement of
criminal laws, including . . . correctional, probation, pardon, or
parole authorities, and which consists of . . . reports identifiable to
an individual compiled at any stage of the process of enforcement
of the criminal laws from arrest or indictment through release from
supervision.
5 U.S.C. § 552a(j)(2).
Pursuant to this statutory authority, regulations have been issued that exempt the
BOP’s Inmate Central Records System (JUSTICE/BOP-005), among other systems, from
subsections (d) and (g) of the Privacy Act. See 28 C.F.R. § 16.97(a)(1), (4). An inmate’s PSI
and custody classification form are part of his Inmate Central File. See BOP Program Statement
5800.11, Inmate Central File, Privacy Folder and Parole Mini-Files (12/31/1997) at 5, 7.
Consequently, insofar as plaintiff demands amendment of his PSI, such relief is simply
unavailable under 5 U.S.C. § 552a(g) because his Inmate Central File is maintained in a system
of records that is exempt from the Privacy Act’s amendment provision. See White v. U.S. Prob.
Office, 148 F.3d 1124, 1125 (D.C. Cir. 1998) (per curiam) (“[P]resentence reports and BOP
inmate records systems are exempt from the amendment provisions of the [Privacy] Act,” and,
therefore, the appellant “is barred from seeking amendment of his presentence report”); Jacobs v.
Bureau of Prisons, 845 F. Supp. 2d 224, 229 (D.D.C. 2012) (“[I]nsofar as plaintiff demands the
access to or amendment of his PSI, such relief is unavailable under 5 U.S.C. § 552a(g).”), aff’d,
5
No. 12-5129, 2012 WL 6603085, at *1 (D.C. Cir. Dec. 17, 2012) (per curiam); Allmon v. Fed.
Bureau of Prisons, 605 F. Supp. 2d 1, 6-7 (D.D.C. 2009) (same); Meyer v. Fed. Bureau of
Prisons, 940 F. Supp. 9, 13-14 (D.D.C. 1996) (granting summary judgment for BOP on claim for
amendment of custody classification form maintained in an exempt system of records).
In addition, under 5 U.S.C. § 552a(j)(2), the BOP’s Inmate Central Records
System is exempt from subsection (e)(5) of the Privacy Act. See 28 C.F.R. § 16.97(j); see also
28 C.F.R. § 16.97(k)(2). 3 The BOP having exempted the Inmate Central Records System (and
the Inmate Central Files maintained therein) from the substantive provision regarding the
agency’s recordkeeping obligations, there remains no remedy at law for any harm resulting from
inaccuracies in the agency’s records. See Martinez v. Bureau of Prisons, 444 F.3d 620, 624
(D.C. Cir. 2006) (per curiam) (upholding dismissal of Privacy Act claims against BOP because
Inmate Central Record System is exempt from subsection (e)(5) of the Privacy Act); Reeves v.
Fed. Bureau of Prisons, 885 F. Supp. 2d 384, 388 (D.D.C. 2012) (dismissing claim under
Section 552a(e)(5) challenging accuracy of sentence computation and good conduct credit
information in Inmate Central File); Earle v. Holder, 815 F. Supp. 2d 176, 181-82 (D.D.C. 2011)
(“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
(e)(5)) and from its damages provision (subsection (g)).”), aff’d, No. 11-5280, 2012 WL
3
The variation in language between subsections (e)(5) and (g)(1)(C) of the Privacy Act is
“of no substantive significance.” Doe v. United States, 821 F.2d 694, 698 n.10 (D.C. Cir. 1987)
(en banc).
6
1450574, at *1 (D.C. Cir. Aug. 12, 2012) (per curiam); Truesdale v. U.S. Dep’t of Justice,
731 F. Supp. 2d 3, 9 (D.D.C. 2010) (same).
Plaintiff acknowledges the BOP Director’s authority to exempt systems of records
from certain Privacy Act provisions pursuant to 5 U.S.C. § 552a(j)(2), and directs the Court’s
attention to two provisions from which exemption is not permitted: subsections (e)(9) and
(e)(10). See Pl.’s Opp’n at 5. He points out that under subsection (e)(9) the BOP remains
obligated to “establish rules of conduct for persons involved in the design, development,
operation, or maintenance of any system of records, or in maintaining any record, and instruct
each such person with respect to such rules and the requirements of this section, including any
other rules and procedures adopted pursuant to this section and the penalties for noncompliance.”
5 U.S.C. § 552a(e)(9). Furthermore, under subsection (e)(10), the BOP must “establish
appropriate administrative, technical and physical safeguards to insure the security and
confidentiality of records and to protect against any anticipated threats or hazards to their
security or integrity which could result in substantial harm, embarrassment, inconvenience, or
unfairness to any individual on whom information is maintained.” 5 U.S.C. § 552a(e)(10).
Plaintiff neither articulates the relevance of these two provisions, nor cites any authority for the
proposition that these provisions vitiate the regulations which the Inmate Central Records
System is exempt from the amendment and accuracy provisions of the Privacy Act.
Finally, the Court notes that the Privacy Act only “allows for amendment of
factual or historical errors. It is not a vehicle for amending the judgments of federal officials or
. . . other[s] . . . as those judgments are reflected in records maintained by federal agencies.”
Kleiman v. Dep’t of Energy, 956 F.2d 335, 337–38 (D.C. Cir. 1992); see Allmon v. Fed. Bureau
7
of Prisons, 605 F. Supp. 2d at, 7 (“The Privacy Act is not a means to challenge the opinions or
judgments of the agency.”). Plaintiff cannot force BOP to change his custody classification by
means of a civil suit under the Privacy Act. See id.; Conklin v. Bureau of Prisons, 514 F. Supp.
2d 1, 6 (D.D.C. 2007) (concluding that plaintiff’s “custody classification reflects the judgment of
the BOP staff, and, therefore, is not subject to amendment under the Privacy Act”).
III. CONCLUSION
Because plaintiff’s complaint fails to state a claim under the Privacy Act upon
which relief can be granted, defendant’s motion to dismiss will be granted. An appropriate
Order accompanies this Memorandum Opinion.
/s/_____________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: August 7, 2013
8