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Ramirez v. Dep't of Justice

January 30, 2009


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff brings this action under the Privacy Act, 5 U.S.C. § 552a, against the United States Department of Justice and several of its components, a United States Probation Office, and individual officials and employees of those entities. The defendants have moved to dismiss, or in the alternative, for summary judgment. For the reasons discussed below, defendants' motions will be granted.


Plaintiff currently is in the custody of the Federal Bureau of Prisons ("BOP") serving life sentences imposed by the United States District Court for the Western District of Texas, San Antonio Division. See Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss and, in the Alternative, for Summary Judgment ("Defs.' Mot."), Ex. 5 (Public Information Inmate Data as of 05-20-2008) at 2 & Ex. 6 (criminal docket, United States v. Ramirez, No. 05-cr-00621-FB-3 (W.D. Tex. filed Nov. 20, 2002), appeal dismissed for want of prosecution, No. 04-50778 (5th Cir. May 9, 2006) (exhibit numbers designated by the Court); Compl. at 2 (page numbers designated by the Court). He initially alleges that the presentence investigation report ("PSR") prepared by the United States Probation Office for the Western District of Texas contained false and inaccurate information supplied by the United States Attorney's Office for the Western District of Texas on which the defendants rely to his detriment. See Compl. at 2-3. Generally, the information about which plaintiff complains appears in "the affidavit that supported probable cause" and "the affidavits for Title 3 intercepts that were used before and at the grand jury proceeding to indict [him]." Compl., Attach. A (April 13, 2005 letter to Johnny Sutton, United States Attorney for the Western District of Texas).

According to plaintiff, the United States Probation Office prepared the PSR on or about May 24, 2004. Compl. at 2. He says that he told the Assistant United States Attorneys prosecuting the criminal case, the probation officer and the presiding judge in open court at his sentencing hearing on July 22, 2004, that the PSR contained false and inaccurate information. Id. at 3. Although plaintiff claims he "did submit documentation on the court record at sentencing []

[t]hat proved this information was in [f]act false and inaccurate," he complains that "not one of these agency officers [or] officers of the court[] [m]oved to correct this false and inaccurate information." Id. The PSR became a part of the BOP's records pertaining to plaintiff and is maintained in his Inmate Central File. See id. at 2-3. Plaintiff contacted the United States Attorney's Office for the Western District of Texas, the Executive Office for United States Attorneys ("EOUSA"), the BOP, and the Drug Enforcement Administration ("DEA") in unsuccessful attempts to have the PSR corrected. See id. at 3-6; Motion to Amend Pleading [#14], Ex. 2 (April 28, 2008 letter to DEA). Plaintiff does not identify any particular document or record other than the PSR that is incorrect. Rather, he asserts in general and vague terms that records maintained by the United States Attorney's Office, the DEA and the BOP are false and inaccurate. See, e.g., Compl. at 3 & Attach. A at 1.

In his Complaint, plaintiff seeks an order "compelling the Defendants to correct all of the false/inaccurate information . . . within these [agencies'] files and that has affected Plaintiff adversely." Compl. at 6. According to plaintiff, if this false information had been corrected, he "would not have been convicted to begin with, [and he] would not have been given 3 life sentences and [he] would not have been classified [by BOP] and designated to a [United States Penitentiary]." Id., Attach. A at 2. In subsequent papers, however, plaintiff appears to have abandoned his claim for amendment of the offending records and instead focuses exclusively on defendants' alleged failure to comply with the Privacy Act's accuracy provision, see 5 U.S.C. § 552a(e)(5), and his claim for actual damages resulting from the agencies' failure to maintain records with the requisite level of accuracy.*fn1 See 5 U.S.C. § 552a(g)(1)(C). See Motion to Amend Pleading [#14] at 1; Plaintiff[']s Memorandum in Response to Defendants['] Motion to Dismiss And Or Summary Judgment ("Pl.'s Opp'n") [#25-2] at 4-5, 38-40.


A. Defendants' Motions to Dismiss

The Federal Rules of Civil Procedure require that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. __, __, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A motion under Rule 12(b)(6) does not test a plaintiff's likelihood of success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes the factual allegations of the complaint to be true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Phillip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2001). Although "detailed factual allegations" are not required to withstand a Rule 12(b)(6) motion, a plaintiff must offer "more than labels and conclusions" to provide "grounds" of "entitle[ment] to relief." Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1964-65. Thus, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (citations omitted).

1. The United States Department of Justice is the Proper Party Defendant

A person may bring a civil action under the Privacy Act against an agency of the federal government. 5 U.S.C. § 552a(g)(1). For purposes of the Privacy Act, the term "agency" means: any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency[.] 5 U.S.C. § 552(f)(1). The term does not encompass officers or employees of an agency. See Mittleman v. United States Treasury, 773 F. Supp. 442, 450 (D.D.C. 1991) (dismissing all Privacy Act claims against defendants other than federal agencies); see also Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir. 1989) (concluding that individuals are not liable for damages under the Privacy Act because civil action is filed against the agency). Nor does the term "agency" include "the courts of the United States," 5 U.S.C. § 551(1)(B), a phrase interpreted as applying to the entire judicial branch of government. See Washington Legal Found. v. United States Sentencing Comm'n, 17 F.3d 1446, 1449 (D.C. Cir. 1994). United States Probation Offices are units of the federal courts and therefore are not subject to the Privacy Act. See DeMartino v. Fed. Bureau of Investigation, 511 F. Supp. 2d 146, 148 (D.D.C. 2007); Callwood v. Dep't of Probation of the Virgin Islands, 982 F. Supp. 341, 343 (D.V.I. 1997). Accordingly, all the individual defendants named in the complaint, as amended, and the United States Probation Office will be dismissed as party defendants.*fn2 In addition, the named components of the Department of Justice will be dismissed sua sponte since complete relief for any Privacy Act violations by the components can be awarded against the Department itself. See Lopez v. Huff, 508 F. Supp. 2d 71, 73 n.3 (D.D.C. 2007) (substituting "the Department of Justice, of which the [Federal Bureau of Prisons] is a component, as the real party in interest" in a Privacy Act suit); Marcotte v. Sec'y of Defense, 618 F. Supp. 756, 763 (D. Kan. 1985) (concluding that the Department of the Air Force, not the separate entities encompassed within it, is the "agency" for purposes of the Privacy Act). The United States Department of Justice, then, is the remaining defendant.*fn3

2. Plaintiff's Claims are Barred by the Statute of Limitations

A Privacy Act cause of action arises "at the time that (1) an error was made in maintaining plaintiff's records; (2) plaintiff was harmed by the error; and (3) the plaintiff either knew or had reason to know of the error." Szymanski v. United States Parole Comm'n, 870 F. Supp. 377, 378 (D.D.C. 1994); see Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987). A new cause of action does not arise each time an adverse determination is made based on the allegedly erroneous records. Harrell v. Fleming, 285 F.3d 1292, 1293 (10th Cir.), cert. denied, 537 U.S. 1057 (2002); Bergman v. United States, 751 F.2d 314, 317 (10th Cir.), cert. denied, 474 U.S. 945 (1985). An action to enforce a Privacy Act claim must be filed within two years from the date on which the claim arises. 5 U.S.C. ...

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