Opinion
C.A. No. 03-12165-MLW.
September 19, 2006
MEMORANDUM AND ORDER
On August 25, 2005, this court dismissed pro se plaintiff John A. Murphy, III's Freedom of Information Act claim and granted his motion to amend his complaint concerning his Privacy Act ("PA") claim. The plaintiff filed an amended complaint, alleging that the defendants violated the PA by deliberately failing to respond to his requests for records so that he would not receive Social Security benefits due to him. With the amended complaint, the plaintiff filed a motion for summary judgment, and the defendants responded with an opposition and cross-motion for summary judgment. On December 5, 2005, the court issued an Order stating that the defendants' cross-motion for summary judgment would be treated as a motion to dismiss. The plaintiff has responded to the defendants' motion.
The court has carefully considered the parties' submissions. For the reasons described below, defendants' position is meritorious. Therefore, the their motion to dismiss is being allowed.
In considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court "must accept all well-pleaded facts alleged in the Complaint as true and draw all reasonable inferences in favor of the plaintiff." Day v. Fallon Cmty. Health Plan, Inc., 917 F. Supp. 72, 75 (D. Mass 1996); see also Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). "`A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Miranda v. Ponce Fed'l Bank, 948 F.2d 41, 44 (1st Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must "neither weigh the evidence nor rule on the merits because the issue is not whether the plaintiffs will ultimately prevail, but whether they are entitled to offer evidence in support of their claims." Day, 917 F. Supp. at 75.
This "highly deferential" standard of review "does not mean, however, that a court must (or should) accept every allegation made by the complainant, no matter how conclusory or generalized." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). A court should "eschew any reliance on bald assertions, unsupportable conclusions, and `opprobrious epithets.'" Chongris v. Board of Appeals of Town of Andover, 811 F.2d 36, 37 (1st Cir. 1987) (quoting Snowden v. Hughes, 321 U.S. 1, 10 (1944)), cert. denied, 107 S. Ct. 3266 (1987).
Since Murphy is a pro-se plaintiff, the court has construed his complaint "liberally," Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), and held his complaint to "less stringent standards" than a pleading drafted by an attorney, Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, it fails to state a claim on which relief can be granted.
In his amended complaint, the plaintiff alleges that the defendants violated both the Freedom of Information Act and the Privacy Act. The plaintiff claims he sent three separate requests for records to the Social Security Administration's ("SSA") Roxbury, Massachusetts District Office to which there was no response "until the Plaintiff received a letter with the requested information, post-marked Sept. 28, 2004." Amended Complaint at 2. The plaintiff further alleges that the defendants did not keep proper records of disclosures as is required by the PA. Id. He contends that they took such actions in order to "keep from paying the Plaintiff unpaid benefits that are owed to him."Id.
The plaintiff asserts that the defendants violated § 552a (c)(1)(A), (c)(2), (d)(1), (g)(1)(b) and (g)(1)(D) of the PA. The plaintiff asks that the court grant injunctive relief ordering the defendants to pay the plaintiff overdue benefits. The plaintiff also asks the court to award $25,000 in actual damages and $25,000 in punitive damages pursuant to § 552a(g)(4)(A) of the PA. The plaintiff, therefore, seeks two things: damages and lost Social Security benefits. The plaintiff concedes that he eventually received the information he requested in his letters to the Social Security Administration. Therefore, any claim for an injunction ordering that the plaintiff be provided the requested records is moot. See Mumme v. U.S. Dep't of Labor, 150 F.Supp.2d 162, 171 (D. Me. 2001)
This court dismissed plaintiff's Freedom of Information Act claim on August 25, 2005, and allowed the plaintiff to amend his complaint only concerning his PA claim. Therefore, the Freedom of Information Act claim in the amended complaint is not properly before the court.
The plaintiff's first request for relief under the PA is for injunctive relief awarding him lost benefits. He cannot recover lost benefits under the PA, because the sole form of injunctive relief authorized by the PA is the production of records. The provision of the PA that is implicated by plaintiff's allegations is § 552a(d)(1), which states in pertinent part that, "[e]ach agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of all or any portion thereof."
When § 552a(d)(1) is violated, the civil remedy is set forth in § 552a(g). Section 552a(g)(1)(B) gives district courts of the United States jurisdiction whenever any agency "refuses to comply with an individual request under subsection (d)(1)." Section 552a(g)(3)(A) provides that "[i]n any suit brought under the provisions of subsection (g)(1)(B) . . ., the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him." The PA does not provide for injunctive relief that awards lost benefits to a plaintiff. Thus, Murphy's allegations do not state a claim for the award of Social Security benefits on which relief can be granted as a matter of law.
The second remedy the plaintiff seeks under the PA is damages. Section 552(a)(g)(4) of the PA states when damages are available. It provides that, "in any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of . . . actual damages sustained by the individual . . . and the costs of the action together with reasonable attorney fees."
The plaintiff makes two claims relevant to damages. First, he alleges that he sent requests for information to which the defendants did not respond, and second that the defendants did not properly account for their records. Only the second allegation is within the scope of § 552a(g)(1)(C) or (D), thus allowing recovery in appropriate cases of damages pursuant to § 552a(g)(4).
The Supreme Court has held that § 552a(g)(1)(C) allows for civil recovery when an agency fails "to maintain an adequate record on an individual, when the result is a determination `adverse' to that person." Doe v. Chao, 540 U.S. 614, 619 (2004). A failure to respond to information requests does not concern the maintenance of records. Therefore, § 552a(g)(1)(C) does not provide a basis for recovery of damages for defendants' alleged conduct.
Section 552a(g)(1)(D) provides that damages may be awarded when an agency "fails to comply with any other provision of this section." Thus, it is a "catchall" provision that allows for civil recovery when a provision in the PA is violated that is not covered by subsection (g). The failure to respond to information requests, however, is specifically contemplated by subsection (g). The PA provides in § 552a(g)(1)(B) that a plaintiff may bring a civil action based on a failure to respond to information requests. Section 552a(3)(A) provides for injunctive relief for actions brought under § 552a(g)(1)(B). It has been correctly held that the PA does not provide for damages in actions brought on the premise that an agency failed to disclose information. InHaddon v. Freeh, 31 F.Supp.2d 15, 22 (D.D.C. 1998), it was held that the "only remedy available to the plaintiff" pursuant to subsection g(1)(B) is injunctive relief. This court agrees.
Therefore, the plaintiff's allegations related to the defendants' failure to respond to requests for information does not provide a basis for awarding damages under the PA.
However, the plaintiff's allegation relating to the defendants' failure to maintain adequate records remains. If properly asserted, an agency's failure to maintain its records pursuant to the PA's requirements can result in an award of damages. As described earlier, damages may be awarded pursuant to § 552a(g)(4) in any suit brought under subsection (g)(1)(C) or (D). A claim relating to a failure to maintain records alleges a violation of (g)(1)(C), which provides for civil action when an agency fails to maintain an accurate record concerning an individual and, as a result, the individual suffers an adverse consequence. A claim relating to a failure to maintain records could conceivably be covered by the catchall (g)(1)(D). Subsection (c) of the PA requires that an agency keep an accounting of its disclosures. Since subsection (c) is not referenced in subsection (g), a failure to keep the required accounting could warrant a damages award pursuant to § 552(g)(1)(D).
However, taking all allegations in the complaint as true and construing the complaint liberally, the plaintiff has not alleged a viable claim under either subsection (c) or (g)(1)(C). The plaintiff alleges that the defendants violated § 552a(c)(1)(A) and (c)(2). Section 552a(c)(1)(A) requires agencies to "keep an accurate accounting of the date, nature, and purpose of each disclosure of a record." Section 552a(c)(2) requires an agency to "retain the accounting made under paragraph (1) of this subsection for at least five years." Thus, "[t]he Privacy Act compels federal agencies that have a `system of records' to maintain a list containing `the date, nature, and purpose of each disclosure' of such records. The required list is described in the statute as `an accounting of disclosures.'" Standley v. Department of Justice, 835 F.2d 216, 219 (9th Cir. 1987).
The plaintiff alleges that the defendants violated these provisions because Joseph Sliwa, an employee at the Social Security Administration's Roxbury, Massachusetts District Office, where the plaintiff allegedly sent his record requests, stated that the type of request letters the plaintiff sent would have been routed to a service representative for a response to the plaintiff. Moreover, "no record of the response would have been maintained, since our procedures do not require such responses on record." Sliva Affidavit, Exhibit 1 to Defendants' Memorandum in Support of Motion to Dismiss, ¶¶ 6-7.
Plaintiff fails to state a claim on which relief can be granted because his complaint, even when liberally construed, does not allege that the defendants failed to keep an accurate account of disclosures to third parties of information concerning the plaintiff. Rather, the complaint is predicated on the contention that the defendants did not make required disclosures to the plaintiff. The accounting requirements in § 552a(c) apply only to disclosures. See Clarkson v. IRS, 811 F.2d 1396, 1398 (11th Cir. 1987). In Clarkson, the Eleventh Circuit held that § 552a(c) was not violated when an agency did not disclose a plaintiff's records to any outside agency or individual other than the plaintiff himself. Id. In the instant case, the plaintiff has not alleged that the defendants disclosed his records to any other agency or individual. Thus, the plaintiff has not alleged a viable claim under § 552a(c). Id. Therefore, the remedial catchall provision § 552a(g)(1)(D) is not a basis for relief.
Similarly, based on the facts alleged, the plaintiff has failed to state a viable claim for which § 552a(g)(1)(C) provides a damages remedy. As explained earlier, the Supreme Court has held that § 552a(g)(1)(C) "describes an agency's failure to maintain an adequate record on an individual, when the result is a determination `adverse' to that person." Doe v. Chao, 540 U.S. at 619. To obtain a damages award pursuant to § 552a(g)(4) and (g)(1)(C), the plaintiff must allege he has suffered actual damages. Id. at 620. The plaintiff here adequately alleges that the defendants failed to maintain records concerning him since he asserts that the agency did not maintain any records of their responses to him.
However, the plaintiff has not adequately alleged that he has suffered an adverse consequence and actual damages as a result of erroneous recordkeeping. The plaintiff does assert that the defendants' acts prevented him from receiving Social Security benefits owed to him. However, he does not state how he was harmed or allege any facts from which the court can infer how he was damaged. Even construing the complaint liberally, as is required for a pro se plaintiff, without any facts that could demonstrate that the plaintiff suffered actual damages from the allegedly improper record-keeping, the plaintiff's statement is a bald assertion. As described earlier, the First Circuit has instructed that "in considering motions to dismiss courts should continue to `eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets.'" Educadores Puertorrique Nos En Acci On v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004) (quoting Chongris v. Bd. of Appeals, 811 F.2d at 37). Although the court is required "to construe liberally a pro se complaint and may affirm its dismissal only if a plaintiff cannot prove any set of facts entitling him or her to relief," "pro se status does not insulate a party from complying with procedural and substantive law." Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). The court may dismiss a pro se complaint "in which the formal elements of the claim [are] stated without the requisite supporting facts." Id. Therefore, since the plaintiff has previously been permitted to amend his complaint to attempt to allege a viable PA claim and has failed to allege any facts indicating how he has suffered actual damages due to the defendants' alleged inadequate record keeping, he has not stated a claim for which damages may be awarded under § 552a(g)(1)(C).
Finally, the plaintiff cannot recover attorneys' fees because he has not, and cannot, prevail on any of his claims. The PA provides for attorneys' fees only in cases "in which the complainant has substantially prevailed." § 552a(g)(B).
For the foregoing reasons, plaintiff has not stated a claim for which damages, injunctive relief awarding lost benefits, or attorneys' fees may be awarded. Therefore, the defendants' motion to dismiss (Docket No. 50) is hereby ALLOWED and this case is hereby DISMISSED.