Berry v. Federal Bureau of Investigation et al

Filing 31

///ORDER granting without prejudice 27 Motion to Dismiss for Failure to State a Claim. Granted without prejudice to file a second amended complaint by March 5, 2018. Failure to file a second amended complaint within this time frame will result in the dismissal of Berrys claims against the defendants with prejudice. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jason Berry
v.

Civil No. 17-cv-143-LM
Opinion No. 2018 DNH 024

Federal Bureau of
Investigation, et al.

O R D E R
Jason T. Berry brings claims for violation of the Privacy
Act, 5 U.S.C. § 552a, against the Federal Bureau of
Investigation (“FBI”) and one of its agents, Mark Hastbacka,
alleging that Hastbacka improperly disclosed information about
him to third parties.

Berry also brings a Bivens claim against

Hastbacka based on the same alleged conduct.

The FBI and

Hastbacka move to dismiss, arguing that Berry’s claims fail as a
matter of law.

Berry objects.
STANDARD OF REVIEW

Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.” Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(internal quotation marks omitted).

A claim is facially

plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).
BACKGROUND1
Berry is a former probation and parole officer for the
state of New Hampshire.

In this role, Berry assisted members of

the FBI’s Safe Streets Task Force in arrests and other tasks.
On February 23, 2017, Berry sent a request under the Freedom of
Information Act (“FOIA”) to the FBI office in Bedford, New
Hampshire, seeking “any information regarding his personal
information and historical documentation of his past involvement
in the activities of the Safe Streets Task Force in New
Hampshire.”

Doc. no. 26 at ¶ 16.

In response to Berry’s FOIA request, Hastbacka called
Berry’s parents and left a voicemail on their home phone.

In

that voicemail, Hastbacka said that he was calling about some
correspondence that Berry had sent.

Hastbacka added that he had

“tried to call [Berry] a couple of times, he’s not picking up,
and there’s no voicemail.”

Doc. no. 26 at ¶ 21.

Hastbacka

The facts contained in this section are taken from the
allegations in Berry’s amended complaint (“complaint”), which is
the operative complaint in this action. See doc. no. 26.
1

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requested that Berry call him back and left a telephone number
where Berry could reach him.
Berry’s parents were not aware that he had sent a FOIA
request to the FBI.

Upon hearing the voicemail, Berry’s parents

“were confused and concerned about being contacted by the
Federal Bureau of Investigation about their son.”

Doc. no. 26

at ¶ 23.
DISCUSSION
Berry, proceeding pro se, brought this lawsuit, alleging
one count against the FBI and Hastbacka under the Privacy Act.
In that count, Berry also contends that “Hastbacka is excepted
from any immunity . . . under the legal precedents established
by Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).”

Doc. no. 26 at ¶ 38.

Bivens

is not a basis for creating liability under the Privacy Act, but
instead allows, in certain circumstances, a claim “for damages
against federal officers alleged to have violated a citizen’s
constitutional rights.”

Casey v. Dep’t of Health & Human

Servs., 807 F.3d 395, 400–01 (1st Cir. 2015).

Because Berry is

pro se, the court construes his complaint as alleging a separate
claim for damages under Bivens.

Erikson v. Pardus, 551 U.S. 89,

94 (2007) (per curiam) (internal citations omitted) (“[A] pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”).
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Berry’s claims are premised on the allegation that
Hastbacka or the FBI violated his privacy rights when Hastbacka
disclosed to Berry’s parents that he had sent correspondence to
the FBI.

The defendants move to dismiss Berry’s claims.

In

support, Hastbacka argues that he is not a proper defendant
under the Privacy Act and that the conduct alleged in the
complaint cannot be the basis for a Bivens claim.

In addition,

the FBI contends that Berry’s claim against it must be dismissed
because the relief that Berry has alleged he is entitled to is
not available under the Privacy Act.
I.

Berry objects.

Claims Against Hastbacka
Berry’s complaint asserts claims against Hastbacka under

the Privacy Act and under Bivens, 403 U.S. at 388.
A. Privacy Act
“The Privacy Act limits all administrative agency
disclosure of personal records, subject to various exceptions,”
Flock v. United States Dep’t of Transportation, 840 F.3d 49, 53
(1st Cir. 2016) (citing 5 U.S.C. § 552a(b)), cert. denied sub
nom. Flock v. Dep’t of Transp., 137 S. Ct. 2268 (2017)), none of
which is relevant here.

The Privacy Act contains a civil

remedies provision, which permits an individual harmed by a
violation of the Act to bring a civil lawsuit.
§ 552a(g)(1).

See 5 U.S.C.

That provision, however, only provides for a

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civil action against a federal agency.

Id. (“[An] individual

may bring a civil action against the agency . . . .”).
Accordingly, courts have routinely dismissed claims under
the Privacy Act against individual defendants.

See e.g., Flores

ex rel. Estate of Flores v. Fox, 394 F. App’x 170, 172 (5th Cir.
2010) (“The district court properly dismissed Flores’s claims
for damages against the individual defendants because only
agencies may be sued under the Privacy Act.”); Moon v. Rivas,
No. 15-CV-00890-NJR, 2015 WL 5585637, at *4 (S.D. Ill. Sept. 21,
2015); Ghaffari v. Internal Revenue Serv., No. 5:14-CV-02927PSG, 2015 WL 3630217, at *2 (N.D. Cal. June 10, 2015) (“Section
522a(g)(1) only allows plaintiffs to bring civil actions
‘against the agency.’”); Huene v. U.S. Dep’t of the Treasury,
No. 2:11-CV-02110 JAM, 2012 WL 1197564, at *5 (E.D. Cal. Apr.
10, 2012), report and recommendation adopted, No. CIV-S-11-2110JAM, 2012 WL 2261007 (E.D. Cal. June 15, 2012); Burns v. Potter,
334 F. Supp. 2d 13, 21 (D. Mass. 2004).
As Hastbacka is not a proper defendant under the Privacy
Act, Berry’s claim against him under the Act fails as a matter
of law.
B. Bivens Claim
Berry next alleges that Hastbacka is individually liable
under Bivens, 403 U.S. at 388.

“In Bivens, the Supreme Court

recognized for the first time an implied private right of action
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for damages against federal officers alleged to have violated a
citizen’s constitutional rights.”

Casey, 807 F.3d at 400.

“The

scope of constitutional violations redressable by means of a
Bivens action is, however, quite limited.”

Id.

In Bivens

itself, the Supreme Court recognized an implied private right of
action to remedy unlawful searches and seizures in violation of
the Fourth Amendment.

403 U.S. at 397.

Since Bivens was

decided over 40 years ago, the Supreme Court has only extended
its holding to two other types of constitutional violations.
Casey, 807 F.3d at 401; see also Carlson v. Green, 446 U.S. 14
(1980) (allowing Bivens action to redress Eighth Amendment
violations committed by prison officials); Davis v. Passman, 442
U.S. 228 (1979) (allowing Bivens action to redress employment
discrimination in violation of the Due Process Clause of the
Fifth Amendment).

“The Court’s hesitancy to extend Bivens

further stems, at least in part, from its recognition that
Congress is generally better-positioned to craft appropriate
remedial schemes to address constitutional violations committed
by federal officers.”

Id.

The conduct that Berry alleges in his complaint is not the
type of rights violation that the Supreme Court has held can be
remedied under Bivens.

Therefore, for Berry to proceed on his

claim, the court must expand the scope of the implied private
right of action recognized in Bivens.
6

Ziglar v. Abbasi, 137 S.

Ct. 1843, 1859 (2017) (explaining that applying Bivens to any
case that is “different in a meaningful way from previous Bivens
cases decided by this Court” is an expansion of the doctrine).
The Supreme Court has “made clear that expanding the Bivens
remedy is now a ‘disfavored’ judicial activity.”

Id. at 1857

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).

A

plaintiff will not have access to a Bivens remedy “if there are
special factors counselling hesitation in the absence of
affirmative action by Congress.”
quotation marks omitted).

Id. at 1857 (internal

Further, “if there is an alternative

remedial structure present in a certain case, that alone may
limit the power of the Judiciary to infer a new Bivens cause of
action.”

Id. at 1858; see also Gonzalez v. Velez, 864 F.3d 45,

53 (1st Cir. 2017) (concluding that no Bivens remedy was
available where alternative federal remedy existed).

“For if

Congress has created ‘any alternative, existing process for
protecting the [injured party’s] interest’ that itself may
‘amoun[t] to a convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in
damages.’”

Ziglar v. Abbasi, 137 S. Ct. 1858 (quoting Wilkie v.

Robbins, 551 U.S. 537, 550, (2007)).

Accordingly, “when

alternative methods of relief are available, a Bivens remedy
usually is not.”

Id. at 1863.

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As discussed above, the Privacy Act provides a remedy
protecting Berry’s interest in the government not disclosing
information about him.

See 5 U.S.C. § 552a(b)&(g).

Because of

this remedial scheme, courts have refused to imply a private
right of action under Bivens for claims based on the disclosure
of personal information.

See e.g., Wilson v. Libby, 535 F.3d

697, 710 (D.C. Cir. 2008) (affirming dismissal of Bivens claim
based on disclosure of information “because Congress created a
comprehensive Privacy Act scheme”); Downie v. City of Middleburg
Heights, 301 F.3d 688, 697 (6th Cir. 2002) (affirming district
court’s dismissal of Bivens claim based on disclosure of
information “because the Privacy Act is a comprehensive
legislative scheme that provides a meaningful remedy for the
kind of wrong [plaintiff] alleges that he suffered”); Bloch v.
Exec. Office of the President, 164 F. Supp. 3d 841, 860 n.26
(E.D. Va. 2016) (dismissing Bivens claim based on agency
disclosure of information); Gibson v. Holder, No.
3:14CV641/MCR/EMT, 2015 WL 5635125, at *7 (N.D. Fla. Aug. 3,
2015), report and recommendation adopted, No. 3:14CV641/MCR/EMT,
2015 WL 5634596 (N.D. Fla. Sept. 23, 2015) (same) (collecting
cases); Zaits v. Beloryan, No. CV 13-9374 GAF(AGRx), 2014 WL
12586446, at *4 (C.D. Cal. Mar. 27, 2014) (same); Young v.
Tryon, No. 12-CV-6251-CJS-MWP, 2013 WL 2471543, at *6-7
(W.D.N.Y. June 7, 2013) (same).
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The court finds the reasoning of these cases persuasive.
Here, just as in those cases, the Privacy Act provides a
meaningful remedy for the conduct alleged in the complaint.

For

that reason, Berry may not bring a Bivens claim to remedy
Hastbacka’s alleged disclosure of his personal information.
In his objection, Berry contends that his Bivens claim may
proceed because it is a “multi-pronged, multi-faceted Violation
of Privacy and the Privacy Act,” which includes violations of
state tort law.

Doc. no. 28 at 7.

As an initial matter, Bivens

“provides a cause of action for constitutional claims only,”
meaning that state tort violations are not redressable under the
Bivens remedy.

See Labadie v. United States, No. C09-1276 MJP,

2011 WL 1376235, at *10 (W.D. Wash. Apr. 12, 2011) (dismissing
state tort law claims made pursuant to Bivens).

In any event,

regardless of the theory that Berry uses to describe the conduct
alleged in his complaint, Congress has provided a remedy for
that conduct through the Privacy Act.
claim cannot proceed.

Therefore, Berry’s Bivens

See Downie, 301 F.3d at 697.2

Because the court has concluded that a Bivens action is not
available here, the court need not determine whether Hastbacka
would be entitled to qualified immunity based on the allegations
in the complaint.
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II. Privacy Act Claim Against the FBI
Berry alleges a claim against the FBI under the Privacy Act,
seeking damages and permanent injunctive relief.

The FBI moves

to dismiss Berry’s claim, arguing that the relief sought in the
complaint is not available under the Privacy Act.

Berry

disagrees.
A. Emotional Distress Damages
In his complaint, Berry seeks “reasonable and appropriate
compensatory damages,” including damages for emotional distress.
Doc. no. 26 at 11.

The FBI argues that Berry’s claim for

damages must be dismissed because the only injury alleged in the
complaint is emotional distress, which, it argues, is an injury
that cannot support an award for damages under the Privacy Act.
In response, Berry does not dispute that the only injury he
has alleged in support of his damages claim is emotional
distress.

Rather, Berry contends that emotional distress

damages are available under the Privacy Act.
The Privacy Act’s civil remedies provision provides that
for any “intentional or willful” refusal or failure to comply
with the Act, the United States shall be liable for “actual
damages” caused by that refusal or failure.

F.A.A. v. Cooper,

566 U.S. 284, 291 (quoting 5 U.S.C. § 552a(g)(4)(A)).

In F.A.A.

v. Cooper, the Supreme Court considered whether the “actual
damages” allowed under the Privacy Act includes damages for
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emotional distress.

566 U.S. at 290-91 (2012).

The Court

concluded that it did not, interpreting “actual damages” to
encompass only damages for tangible economic or pecuniary harm.
Id. at 298, 302-04.
Because the Privacy Act allows plaintiffs to recover
damages against the federal government, that provision operates
as a waiver of the government’s sovereign immunity.
U.S. at 291.3

Cooper, 566

The Court’s decision in Cooper was guided by two

related statutory construction rules concerning waivers of
sovereign immunity.

First, waivers of sovereign immunity “must

be unequivocally expressed in [the] statutory text.”
(internal quotation marks omitted).

Id. at 290

And second, “any

ambiguities in the scope of a waiver [are construed] in favor of
the sovereign.”

Id. at 291.

After analyzing the statutory

language and its context, the Cooper court concluded that it was
plausible to interpret the term “actual damages” as synonymous
with “special damages,” a category of damages that does not
include damages for emotional distress.

Id. at 296-97.

Because

that interpretation was plausible, the Court adopted it and, in

See Schlip v. Dep't of Veterans Affairs, No. CV 16-421S,
2016 WL 6127684, at *2 (D.R.I. Sept. 7, 2016), report and
recommendation adopted, No. CV 16-421 S, 2016 WL 6127505 (D.R.I.
Oct. 20, 2016) (“As a sovereign, the United States is immune
from suit except to the extent that it has waived its sovereign
immunity.”).
3

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doing so, declined to “expand the scope of Congress’ sovereign
immunity waiver beyond what the statutory text clearly
requires.”

Id. at 299.

Berry points to language in Cooper observing that the
meaning of “actual damages” is “far from clear” and that the
Privacy Act does not “unequivocally authorize” awards for
emotional distress.

See Cooper, 566 U.S. at 292, 304.

Berry

asserts that this language demonstrates that the meaning of the
term is still open for interpretation.

Berry is mistaken.

As

discussed above, to operate as a waiver of sovereign immunity,
the statutory language must clearly and unequivocally waive
immunity.

The Court’s conclusion in Cooper that the Privacy Act

does not allow awards for emotional damages was premised on its
conclusion that the statutory language failed to unequivocally
provide for such relief.

Id. at 298-99.

Accordingly, the

language that Berry quotes does not support his argument that
emotional distress damages are available under the Privacy Act.
In addition, Berry cites several cases in support of his
argument that the Privacy Act allows for damages based on
emotional distress.

See doc. no. 28 at 4-6 (citing cases).

The

cases that Berry cites, however, were decided before the Supreme
Court’s 2012 decision in Cooper.

To the extent those cases

differ from Cooper’s conclusion that emotional damages are not

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permitted under the Privacy Act, they are overruled and are no
longer good law.
Here, the only injury that Berry alleges in support of his
claim for damages under the Privacy Act is emotional distress.
Because damages for emotional distress are not included in the
“actual damages” available under the Privacy Act, Berry has not
alleged a plausible claim for damages.
B.

Injunctive Relief

In his complaint, Berry requests permanent injunctive
relief against the FBI.

Specifically, Berry requests that the

court issue a permanent injunction prohibiting the FBI from
contacting Berry and his family or disclosing information about
Berry to outside parties.

The FBI contends that this relief is

unavailable to Berry under the Privacy Act.

In response, Berry

argues that he is entitled to injunctive relief under the
Privacy Act.
The civil remedies provision in the Privacy Act “limits the
injunctive relief available under the statute to an order that
an agency correct inaccurate, incomplete, irrelevant, or
untimely records, 5 U.S.C §§ 552a(g)(1)(A), (2)(A), or give
individuals access to their records.

Id. § 552a(g)(1)(B).”

In

re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., 266 F.
Supp. 3d 1, 43 (D.D.C. 2017); see also Makowski v. United
States, 27 F. Supp. 3d 901, 916 (N.D. Ill. 2014).
13

By expressly

limiting the situations in which injunctive relief is available,
the Privacy Act “precludes other forms of declaratory and
injunctive relief.”

Tarullo v. Def. Contract Audit Agency, 600

F. Supp. 2d 352, 358 (D. Conn. 2009) (quoting Doe v. Stephens,
851 F.2d 1457, 1463 (D.C. Cir. 1988)).

Accordingly, the Privacy

Act does not provide a right of action to enjoin agencies from
disclosing personal information.

Id. (dismissing plaintiff’s

Privacy Act claim for injunctive relief); Shields v. Shetler,
682 F. Supp. 1172, 1176 (D. Colo. 1988) (“[T]he Privacy Act of
1974 does not create a private right of action to enjoin agency
disclosures.”).
Here, Berry seeks an injunction under the Privacy Act
prohibiting the FBI from contacting his family or disclosing his
personal information.

Because that type of injunctive relief is

not available under the Privacy Act, Berry’s claim for
injunctive relief fails.4
Accordingly, Berry has failed to allege that he is entitled
to any relief against the FBI under the Privacy Act.

Therefore,

Berry’s Privacy Act claim against the FBI must be dismissed.

Berry also seeks an injunction against Hastbacka. As the
court has concluded, however, Hastbacka is not a proper
defendant under the Privacy Act. In any case, as discussed
above, the injunctive relief that Berry seeks against the FBI
and Hastbacka is not available under the Privacy Act.
4

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III. Additional Claims and Legal Theories
Berry contends that the defendants’ motion to dismiss
improperly narrows “the scope of the claims and violations in
the plaintiff’s complaint.”

Doc. no. 30 at 3.

Berry also

asserts that his claims are based on a “multi-pronged, multifaceted violation of Privacy and the Privacy Act,” which
includes violations of laws that are not addressed in the
complaint.

Doc. no. 28 at 7-8.

Consistent with the leniency

afforded pro se litigants and their pleadings, the court has
construed Berry’s complaint as broadly as possible, recognizing
all potential claims mentioned in the complaint.

To the extent

Berry intended to bring other claims not asserted in the
complaint, those claims are not properly before the court and
are not a basis for opposing the defendants’ motion to dismiss.
In sum, Berry has failed to allege sufficient facts to state
any plausible claims for relief against Hastbacka and the FBI.
The court, therefore, grants the defendants’ motion to dismiss.
Nonetheless, because Berry is pro se, has not had the
opportunity to amend the substantive allegations in his
complaint,5 and contends that he has other claims for relief, the

Although Berry has filed an amended complaint, doc. no.
26, that amendment was only for the purpose of adding an exhibit
to the original complaint and did not amend that pleading’s
substantive allegations. See doc. no. 25.
5

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defendants’ motion to dismiss is granted without prejudice to
Berry’s ability to file a complaint that states sufficient
claims against Hastbacka and the FBI.

See Rodi v. S. New Eng.

Sch. of Law, 389 F.3d 5, 20 (1st Cir. 2004) (concluding that
plaintiff’s pro se status supported allowing opportunity to
amend complaint before dismissal).

Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 27) is granted without prejudice to Berry’s ability to
file a second amended complaint setting forth facts sufficient
to state plausible claims against Hastbacka or the FBI.
389 F.3d at 20.

Rodi,

Berry has until March 5, 2018, to file a second

amended complaint.

Failure to file a second amended complaint

within this time frame will result in the dismissal of Berry’s
claims against the defendants with prejudice.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
February 5, 2018
cc: Counsel of Record

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