UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TERRY WOODS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 20-1152 (TFH)
)
KATHLEEN HAWK-SAWYER, )
)
Defendant. )
MEMORANDUM OPINION
This matter is before the Court on Defendant’s Motion to Dismiss. For the reasons
discussed below, the motion will be granted.
I. BACKGROUND
Terry Woods, Marshane Woods and Elton Boone (“Plaintiffs”) are federal prisoners in
the custody of the Federal Bureau of Prisons (“BOP”) and designated to the Federal Medical
Center in Butner, North Carolina. First Amended Complaint (ECF No. 1-1, “Am. Compl.”)
¶¶ 4-6. Each has been convicted of drug-related offenses in the state of North Carolina. See id.
¶¶ 10-12.
Plaintiffs explain that the North Carolina Controlled Substance Tax is “a special excise
tax on drug dealers who illegally possess a sufficient quantity of controlled substance.” Id. ¶ 8.
Ordinarily, a drug dealer is expected “to submit a form reporting [his] illegal possession and to
pay tax,” and he is issued “stamps to affix to [his] drugs before [the drugs] are resold.” Id.
“Payment of the drug tax does not make possession or resale legal, however,” and Plaintiffs state
“that no drug dealer has filled a form and voluntarily paid the tax.” Id. Instead, a tax liability is
assessed upon a drug dealer’s arrest and that amount is due immediately. Id. Plaintiffs all have
been assessed a drug tax, see id. ¶¶ 10-12, and allegedly have paid some or all of the tax
assessed, see id. ¶¶ 13-16.
BOP regulations require “assessment of the Plaintiff[s’] criminal history and financial
responsibility,” id. ¶ 19, to include state court convictions, see id. ¶ 20. Such assessments affect
their custody levels and program participation. See id. BOP’s regulations do not take into
account the “satisfactory completion of the [North Carolina] Drug Tax assessed against them.”
Id. ¶ 21. For this reason, Plaintiffs contend that they are “denied access to programs and
services, as a result of the BOP’s failure to consider their satisfactory completion of their
financial obligations.” Id. ¶ 22; see id. ¶ 25.
Plaintiffs bring this action against Kathleen Hawk-Sawyer (“Defendant”), BOP’s
Director, in her official capacity. See id. ¶ 7. They allege that Defendant “failed in her
responsibility to record and consider . . . Plaintiffs[’] satisfactory completion of their financial
obligation . . . for their prior [North Carolina] drug convictions,” id. ¶ 24, and that, as a result,
Plaintiffs are deprived of rights and privileges to which they are entitled under the Constitution
of the United States and under District of Columbia and federal law, see id. ¶¶ 26-27. They
demand a declaratory judgment. See id. at 12 (page number designated by ECF).
On December 5, 2019, Plaintiffs filed their amended complaint (ECF No. 1-1) in the
Superior Court of the District of Columbia. Defendant removed this matter (ECF No. 1) under
28 U.S.C. § 1442 on May 4, 2020. On July 14, 2020, Defendant filed a motion to dismiss the
amended complaint (ECF No. 6) on two grounds: that this Court lacks subject matter jurisdiction
and, alternatively, that the pleading fails to state a claim upon which relief can be granted.
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The Court issued an Order (ECF No. 7) on July 15, 2020, directing Plaintiffs to file their
opposition or other response to Defendant’s motion by September 15, 2020. The Order warned
Plaintiffs that, if they failed to file a timely opposition, the Court may treat the motion as
conceded, dismiss their complaint for failure to prosecute, or rule on the motion based on
Defendant’s arguments alone. To date, Plaintiffs have not filed an opposition.
II. DISCUSSION
A. Dismissal Under Rule 12(b)(1)
1. Legal Standard
“Federal courts are courts of limited jurisdiction . . . [and it] is to be presumed that a
cause lies outside this limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citations omitted). Each Plaintiff bears the burden of demonstrating that this
Court has jurisdiction over his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). “If a court lacks subject matter jurisdiction to entertain a claim, it must dismiss that
claim.” Cofield v. United States, 64 F. Supp. 3d 206, 211 (D.D.C. 2014) (citing Fed. R. Civ. P.
12(b)(1), 12(h)(3)).
2. Derivative jurisdiction
“The derivative-jurisdiction doctrine arises from the theory that a federal court’s
jurisdiction over a removed case derives from the jurisdiction of the state court from which the
case originated.” Palmer v. City Nat’l Bank of W. Va., 498 F.3d 236, 244 (4th Cir. 2007). “The
term ‘State court’ includes the Superior Court of the District of Columbia.” 28 U.S.C. §
1442(d)(6). The Supreme Court instructs:
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The jurisdiction of the federal court on removal is, in a limited sense,
a derivative jurisdiction. If the state court lacks jurisdiction of the
subject-matter or of the parties, the federal court acquires none,
although it might in a like suit originally brought there have had
jurisdiction.
Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922). This Court’s
“threshold determination is whether, prior to removal, the Superior Court . . . had jurisdiction of
the subject matter” of Plaintiffs’ lawsuit. McKoy-Shields v. First Washington Realty, Inc., No.
1:11-CV-1419, 2012 WL 1076195, at *2 (D.D.C. March 30, 2012).
Defendant construes, as does the Court, Plaintiffs’ demand for amendment or correction
of records maintained by the BOP as a claim properly brought under the Privacy Act, see 5
U.S.C. § 552a. Generally, “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). A covered federal agency must “maintain all records which are used
by the agency in making any determination about any individual 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). An individual may request access to and amendment of
an agency’s records about him. See 5 U.S.C. § 552a(d). There is a civil remedy where 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.
5 U.S.C. § 552a(g)(1)(C). Plaintiffs’ complaint reasonably can be construed as alleging that
Defendant failed to maintain inmate records with the requisite level of accuracy and
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completeness, and as a consequence, BOP made adverse determinations with respect to
Plaintiffs’ custody, program participation, and housing.
But “the district courts of the United States,” not the Superior Court of the District of
Columbia, “shall have jurisdiction in the matters under the [relevant] provisions of [the Privacy
Act].” 5 U.S.C. § 552a(g)(1). Because Plaintiffs filed their complaint in the Superior Court,
which did not have jurisdiction over their Privacy Act claim, “this Court cannot ‘acquire’
jurisdiction after removal, even if Plaintiff[s] could have filed [their] complaint in federal court
in the first instance.” Cofield, 64 F. Supp. 3d at 214. Absent derivative jurisdiction, the Court
must dismiss Plaintiffs’ amended complaint. See Merkulov v. U.S. Park Police, 75 F. Supp. 3d
126, 129 (D.D.C. 2014).
B. Dismissal Under Rule 12(b)(6)
1. Legal Standard
Rule 8 of the Federal Rules of Civil Procedure mandates that a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). When a party invokes Rule 12(b)(6) to challenge a complaint for failing to state a
claim for relief pursuant to Rule 8, the Court must assess the complaint to determine whether it
contains sufficient facts that, when accepted as true, evidence a claim that is “plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
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not do.’” Id. (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. A court must treat the complaint’s factual
allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555. But a court need not
accept as true legal conclusions set forth in a complaint. Iqbal, 556 U.S. at 678. “In determining
whether a complaint states a claim, the court may consider the facts alleged in the complaint,
documents attached thereto or incorporated therein, and matters of which it may take judicial
notice.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006).
2. Privacy Act Claims
Even if Plaintiffs’ Privacy Act claims were properly before the Court, Defendant argues,
their claims are not viable. See Def.’s Mem. at 7-8. An agency’s Privacy Act obligations “are
not absolute.” Meyer v. Fed. Bureau of Prisons, 940 F. Supp. 9, 13 (D.D.C. 1996). Relevant
here is the BOP’s authority, see 5 U.S.C. § 552a(j), to exempt certain systems of records from
the Privacy Act’s amendment, accuracy and damages provisions, see 5 U.S.C. §§ 552a(d), (e)(5),
(g).
Defendant presumes that the records Plaintiffs seek to amend or correct are maintained in
the Inmate Central Records System, see Def.’s Mem. at 9, and correctly notes that the Inmate
Central Records System is exempt from the Privacy Act’s amendment provision, see 28 C.F.R. §
16.97(j) (exempting Inmate Central Records System (JUSTICE/BOP-005) from 5 U.S.C. §
552a(d), and (e)(5), among other subsections). Insofar as Plaintiffs demand amendment or
correction of such records, their claim fails. See Skinner v. U.S. Dep’t of Justice & Bureau of
Prisons, 584 F.3d 1093, 1096 (D.C. Cir. 2009) (“As the district court found, as our precedents
make clear, and as amicus acknowledged at oral argument, that exemption [from 5 U.S.C.
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§ 552s(d)] prevents us from ordering the amendment of an inmate’s records.”); Martinez v.
Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (per curiam) (affirming dismissal of
Privacy Act claims against the BOP, which had “exempted its Inmate Central Record System
from the accuracy provisions of the Privacy Act, 5 U.S.C. § 552a(e)(5)); Harrison v. Fed.
Bureau of Prisons, 248 F. Supp. 3d 172, 181 (D.D.C. 2017) (“The Court . . . must join numerous
other courts in holding, as a matter of law, that the Privacy Act subsections (d)(1), (e)(5), (f), and
others afford inmates and former inmates no cause of action regarding such records.”); 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)).”). 1
3. Fifth Amendment Claim 2
Plaintiffs do not specify which provisions of the Constitution pertain to their claims and
the particular rights and privileges Defendant allegedly has denied them. Presumably Plaintiffs
attempt to assert a due process claim under the Fifth Amendment to the United States
Constitution, and to do so, they “must identify the denial of a liberty interest.” James v. Reno, 39
F. Supp. 2d 37, 40 (D.D.C. 1999) (citing Sandin v. Conner, 515 U.S. 472 (1995)), aff’d, No. 99-
5081, 1999 WL 615084 (D.C. Cir. July 2, 1999). Prisoners have no liberty interest in their place
of incarceration, however. See Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (concluding “that
1
Defendant represents that “the BOP’s records confirm that each Plaintiff satisfied his financial
obligations ten or more years ago.” Def.’s Mem. at 10; see also id., Exs. 1-3.
2
Plaintiffs do not identify the provisions of District of Columbia law on which they rely. This
is of no moment, because as federal prisoners, District of Columbia does not appear to apply to
them.
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an interstate prison transfer, including one from Hawaii to California, does not deprive an inmate
of any liberty interest protected by the Due Process Clause in and of itself”); Banks v. York, 515
F. Supp. 2d 89, 109 (D.D.C. 2007) (rejecting detainee’s claim that he was entitled to placement
at Correctional Treatment Facility rather than at the D.C. Jail where conditions were more
restrictive). Nor do prisoners have a right to a particular security classification or program
participation. See Way v. Johnson, 893 F. Supp. 2d 15, 23 (D.D.C. 2012) (finding that prisoner
had no “protected liberty interest in participation in a particular program”); James, 39 F. Supp.
2d at 40 (rejecting argument that “that mandatory language in Bureau of Prisons’ regulations
governing security classifications creates a liberty interest in their application to” plaintiff);
Meyer v. Reno, 911 F. Supp. 11, 16 (D.D.C. 1996) (because prisoner had “no protected liberty
interest in obtaining or maintaining a particular security classification,” he “fails to state a
cognizable claim with respect to the alleged failure to enroll him in a program that would result
in his incarceration at a lower security level”).
III. CONCLUSION
The Court concludes that it lacks jurisdiction over Plaintiffs’ Privacy Act claims, and
therefore, defendant’s motion to dismiss for lack of jurisdiction is granted. And even if this
Court had jurisdiction, dismissal is warranted because Plaintiffs’ amended complaint fails to
state Privacy Act claims upon which relief can be granted. An Order is issued separately.
________________________________
THOMAS F. HOGAN
DATE: October ___,
20 2020 United States District Judge
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