Summary
affirming dismissal of Privacy Act claim where "nothing in [plaintiff's] pleadings could be construed as alleging he sustained pecuniary loss as a result of [defendant's] alleged Privacy Act violation"
Summary of this case from Young v. TryonOpinion
No. 11-5280 1:10-cv-00422-PLF
04-20-2012
Vernon Norman Earle, Appellant v. Eric H. Holder, Jr., et al., Appellees
BEFORE: Garland, Brown, and Kavanaugh, Circuit Judges ORDER
Upon consideration the District of Columbia's motion for summary affirmance, and the response thereto; the federal government's motion for summary affirmance, and the response thereto; and the motion for appointment of counsel, it is
ORDERED that the motion for appointment of counsel be denied. In civil cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED that the motions for summary affirmance be granted for the reasons stated in the accompanying memorandum. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
Per Curiam
MEMORANDUM
With regard to the September 28, 2011 order dismissing the individually-named D.C. defendants, the district court properly determined that appellant could not sustain a claim under either the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., or the Privacy Act, 5 U.S.C. § 552a et seq., because neither creates a cause of action against individuals, only against agencies. See Martinez v. BOP, 444 F.3d 620, 624 (D.C. Cir. 2006) (citations omitted). Because the D.C. government is not an "agency" for purposes of FOIA, and because the Privacy Act borrows its definition of "agency" from FOIA, see 5 U.S.C. § 552a(a)(1), the district court properly declined to substitute the D.C. government for the individual D.C. employees. And the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over any claim appellant might have under the District of Columbia FOIA, D.C. Code § 2-531 (2001).
With regard to the September 30, 2011 order dismissing the federal appellees, the district court properly determined that appellant failed to state a claim under FOIA because he did not allege that agency records were withheld. See 5 U.S.C. § 552(a)(4)(B) (federal jurisdiction is dependent upon a showing that agency improperly withheld agency records). The district court also properly concluded the Privacy Act claim challenging the accuracy of information contained in the presentence report is barred by Bureau of Prisons (BOP) regulations exempting its Inmate Central Records System from section 552a(e)(5), thus preventing the court from ordering amendment of an inmate's records. See Skinner v. Bureau of Prisons, 584 F.3d 1093, 1096 (D.C. Cir. 2009) (and cases cited therein), cert. denied, 131 S. Ct. 72 (2011).
Appellant's damages claim was also properly denied. Under 5 U.S.C. § 552a(g)(4), if an agency's failure to properly maintain records is "intentional or willful," the United States may be liable for "actual damages" sustained by the individual as a result. See Skinner, 584 F.3d at 1097. Because the Supreme Court has recently defined "actual damages" under the Privacy Act as requiring pecuniary loss, see FAA v. Cooper, 2012 WL 1019969 *8, No. 10-1024 (U.S. Mar. 28, 2012), and because nothing in appellant's pleadings could be construed as alleging he sustained pecuniary loss as a result of the BOP's alleged Privacy Act violation, the district court correctly determined he was not entitled to damages.
Finally, the district court properly determined that appellant provided no facts to substantiate his claim of retaliation under the Privacy Act. Given the explanation of the security classification point calculations provided to appellant in the context of his administrative appeals, see, e.g., complaint, exhibit 1 at 21, appellant has not demonstrated that his former case worker willfully or intentionally fabricated his score. See Toolasprashad v. Bureau of Prisons, 286 F.2d 576, 584 (D.C. Cir. 2002) (to establish a claim of retaliatory fabrication of prison records under Privacy Act, appellant must demonstrate willful or intentional action).