Berry v. Federal Bureau of Investigation et al

MOTION to Dismiss for Failure to State a Claim

D.N.H.July 3, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE JASON T. BERRY, ) ) Plaintiff, ) ) v. ) Civil No. 17-143-LM ) THE FEDERAL BUREAU OF INVESTIGATION ) ) and ) ) SPECIAL AGENT MARK HASTBACKA, ) In his personal capacity, ) ) Defendants. ) _______________________________________________ ) DEFENDANTS’ MOTION TO DISMISS PURUANT TO RULE 12(b)(6) The plaintiff, Jason T. Berry, who is proceeding pro se, has filed a lawsuit against the FBI, alleging a violation of the Privacy Act, and against FBI Special Agent Mark Hastbacka, in his personal capacity. Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants now move to dismiss the claims against them for failure to state a claim upon which relief may be granted. Special Agent Mark Hastbacka is an improper party for claims arising under the Privacy Act. To the extent that any claim against him arises under the Act, it should be dismissed. Further, Special Agent Hastbacka is entitled to qualified immunity. The acts alleged against him do not support a claim for personal liability pursuant to Bivens. Accordingly, any claim against him predicated on an alleged constitutional violation should be dismissed. Mr. Berry’s Privacy Act claim against the FBI should be dismissed for failure to state a claim, because he has not alleged any actual damages, as required by the Act; emotional distress damages are not available under the Act. Injunctive relief is not an available remedy for the alleged violations of the Act. Case 1:17-cv-00143-LM Document 7 Filed 07/03/17 Page 1 of 2 2 Accordingly, the complaint should be dismissed in its entirety. Respectfully submitted, JOHN J. FARLEY Acting United States Attorney Dated: July 3, 2017 By: /s/ Robert J. Rabuck Robert J. Rabuck Assistant U.S. Attorney NH Bar No. 2087 53 Pleasant Street, 4th Floor Concord, NH 03301 603-225-1552 Rob.rabuck@usdoj.gov CERTIFICATE OF SERVICE I certify that on July 3, 2017, a copy of the above Motion to Dismiss, and accompanying memorandum, was sent via first class mail on Jason T. Berry, pro se, 37 Fenton Avenue, Laconia, NH 03246. /s/ Robert J. Rabuck Robert J. Rabuck, AUSA Case 1:17-cv-00143-LM Document 7 Filed 07/03/17 Page 2 of 2 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE JASON T. BERRY, ) ) Plaintiff, ) ) v. ) Civil No. 17-143-LM ) THE FEDERAL BUREAU OF INVESTIGATION ) ) and ) ) SPECIAL AGENT MARK HASTBACKA, ) In his personal capacity, ) ) Defendants. ) _______________________________________________ ) MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) I. INTRODUCTION The plaintiff, Jason T. Berry, who is proceeding pro se, has filed a lawsuit against the FBI, alleging a violation of the Privacy Act, and against FBI Special Agent Mark Hastbacka, in his personal capacity. Document Number (“DN”) 1. Defendants now move to dismiss the claims pursuant to Fed. R. Civ. P. 12(b)(6). The claim against Special Agent Hastbacka should be dismissed because the Privacy Act does not allow for claims against individual federal employees, and because Privacy Act violations do not provide a predicate for personal liability under Bivens. The claim against the FBI should be dismissed because the plaintiff has not alleged necessary elements of a cause of action under the Privacy Act. Mr. Berry does not have a viable claim against the FBI for either damages or injunctive relief. The plaintiff is a former state parole and probation officer who assisted the FBI’s Safe Streets Task Force on several occasions. DN 1 at 8. On February 23, 2017, incident to a lawsuit Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 1 of 12 2 that the plaintiff filed against a task force officer, he sent a Freedom of Information Act request letter to the FBI’s Bedford, New Hampshire Resident Office, requesting information regarding his past involvement in the Safe Streets Task Force. Id. at 16. On the following day, February 24, 2017, Special Agent Hastbacka, who works at the FBI’s Bedford office, left a voice mail message on the home phone of the plaintiff’s parents, stating that the plaintiff “sent some correspondence here today,” and that he had “tried to call him a couple times, he’s not picking up, and there’s no voicemail.” DN 1 at 21. He left his cell phone number and requested a return call. Id. at 19. On February 27, 2017, Mr. Berry wrote a letter requesting that S/A Hastbacka communicate only with him regarding the FOIA request. Id. at 24. Special Agent Hastbacka replied by sending the plaintiff his business card and directions for contacting the Records Division of the FBI in Virginia. Id. According to the Complaint, “[a]ll communications were polite and friendly.” Id. The plaintiff later wrote to S/A Hastbacka, stating that his contact with Berry’s parents resulted in a “confusing” effect on him and his parents, and asking S/A Hastbacka for an explanation about that contact. Id. at 26. S/A Hastbacka did not reply to this request. Id. at 27. II. THE COURT SHOULD DISMISS ANY PRIVACY ACT CLAIM AGAINST SPECIAL AGENT MARK HASTBACKA BECAUSE CONGRESS HAS NOT AUTHORIZED PRIVACY ACT LAWSUITS AGAINST INDIVIDUAL GOVERNMENT EMPLOYEES Mr. Berry’s Complaint is a single count complaint for “Violations of Privacy Act, 5 U.S.C. 552a(b) –‘Records Maintained on Individuals.’” DN 1 at 30-40. The voicemail message left by S/A Hastbacka on February 24, 2017 is the focal point of the Complaint. Mr. Berry describes this contact as “unreasonable over-reach in discretion and protocol by invading the Plaintiff’s personal life and the life of his immediate family in response to his exercising his legal right to obtain information through official channels.” DN 1 at 36. Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 2 of 12 3 Special Agent Hastbacka is not a proper defendant under the Privacy Act. Actions for damages under the Privacy Act may be brought against federal agencies, but not against individual federal employees. Congress has enacted a carefully calibrated set of judicial remedies for violations of the Privacy Act and its implementing regulations. See 5 U.S.C. § 552a(g). In crafting those remedies, Congress considered imposing monetary liability on “any person found to have violated . . . the Act.” S. Rep. No. 1183, 93d Cong., 2d Sess. 83 (1974) (discussing Section 303(c) of S. 3418 as reported by committee). It ultimately determined, however, that imposing such liability on “an individual employee of a Federal agency” would be inappropriate and that “civil liabilities should run only against the agency itself.” 120 Cong. Rec. 36,891 (1974) (explaining amendments to S. 3418). Congress accordingly eliminated personal liability from the Privacy Act, see id. at 36,921, 37,085; see also id. at 40,406, and enacted a detailed remedial provision that authorizes damages actions only against federal agencies. 5 U.S.C. § 552a(g). See, for example, Schowengerdt v. General Dynamics Corp., 823 F. 2d 1328 (9th Cir. 1987); Brown-Bey v. U.S. 720 F. 2d 467 (7th Cir. 1983). Accordingly, because he is an improper defendant, any claim against S/A Hastbacka under the Privacy Act should be dismissed. III. BECAUSE THE ALLEGED PRIVACY ACT VIOLATIONS DO NOT PROVIDE A PREDICATE FOR A BIVENS ACTION, SPECIAL AGENT MARK HASTBACKA IS ENTITLED TO QUALIFIED IMMUNITY AS TO ANY SUCH CLAIMS Mr. Berry has also invoked Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) as the basis for suing S/A Hastbacka in his personal capacity. In Bivens, 403 U.S. at 388, the Supreme Court recognized an implied private right of action for damages against federal law enforcement officers alleged to have violated a citizen's constitutional rights under the Fourth Amendment. Id. at 397. Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 3 of 12 4 Federal officials sued under Bivens are entitled to qualified immunity unless they (1) personally violated a constitutional right that was (2) clearly established in the specific context of the case. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). The questions may be determined in whatever order will best facilitate the fair and efficient disposition of each case. Id. Qualified immunity applies unless the federal right on which a claim is based was clearly established. Elder v. Holloway, 510 U.S. 510, 516 (1994). That an official’s conduct violates some other constitutional provision or some other person’s clearly established right does not deprive an official of qualified immunity with respect to a plaintiff’s claim. See Conn v. Gabbert, 526 U.S. 286, 292-93 (1999). To overcome qualified immunity, the plaintiff must allege specific facts establishing a violation of a clearly established right such that, for each claim, the official’s conduct violated the provision on which that claim is based in some unmistakable way. Mr. Berry has not done this, for the reasons that follow. At the outset, it is worth noting that Mr. Berry’s Complaint does not allege the violation of a clearly defined, constitutionally protected right, but rather the breach of a statutory duty, which should be enough to end the qualified immunity analysis. Even if the acts alleged against S/A Hastbacka – his leaving a non-descript voicemail message with Mr. Berry’s parents about correspondence with the FBI - could be generously construed as the invasion of a constitutionally protected privacy interest, those acts would still not provide the basis for a Bivens action. In the 46 years since the Supreme Court announced its decision in Bivens, it has become clear that the scope of constitutional violations justiciable by a Bivens action is strictly circumscribed. Bivens itself recognized a right to relief against federal officers alleged to have Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 4 of 12 5 undertaken a warrantless search and seizure in violation of the Fourth Amendment. Id. But, as the First Circuit has pointed out: In the more than four decades since, the Supreme Court has extended the Bivens holding beyond its original Fourth Amendment confines only twice. See Davis v. Passman, 442 U.S. 228 . . . (1979) (employment discrimination in violation of the Due Process Clause of the Fifth Amendment); Carlson v. Green, 446 U.S. 14 . . . (1980) (Eighth Amendment violations committed by prison officials). 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. See, e.g., Bush v. Lucas, 462 U.S. 367, 373 . . . (1983) (“Our prior cases.... establish our power to grant relief that is not expressly authorized by statute, but they also remind us that such power is to be exercised in the light of relevant policy determinations made by the Congress.”). Casey v. Department of Health and Human Services, 807 F.3d 395, 401 (1st Cir. 2015). The Bivens type of “freestanding damages remedy for a claimed constitutional violation,” the Supreme Court has said, “is not an automatic entitlement.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007). On the contrary, the Court has “retreated from [its] previous willingness to imply a cause of action where Congress has not provided one.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 67 n.3 (2001). Implied causes of action are now “disfavored,” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009), and attempts to apply Bivens to a “new context or new category of defendants” are viewed skeptically. Malesko, 534 U.S. at 68; accord Arar v. Ashcroft, 585 F.3d 559, 571 (2nd Cir. 2009) (en banc) (noting that “the Bivens remedy is an extraordinary thing that should rarely if ever be applied in ‘new contexts.’”) (internal citation omitted). The Supreme Court has not once extended Bivens since 1980. It most recently declined to extend Bivens actions on June 19, 2017. See Ziglar v. Abbasi, ___ S. Ct. ___, 2017 WL 262317 (2017) (noting that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity”). Writing for the majority in Ziglar, Justice Kennedy noted that “[t]he Court’s Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 5 of 12 6 precedents now make clear that a Bivens remedy will not be available if there are ‘special factors’ counselling hesitation in the absence of affirmative action by Congress.” Id. at *13 (internal citations omitted). With regard to “special factors,” Justice Kennedy wrote “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 *14. He added, “ [I]f Congress has created ‘any alternative, existing process for protecting the [injured party’s] interest’ that itself may ‘amount to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.’” Id. (internal citations omitted). In the present case, the Privacy Act affords Mr. Berry precisely that - an alternative, existing process for protecting his interest. Furthermore, the Supreme Court has held that a remedial statute need not provide full relief to the plaintiff to qualify as a “special factor” in Schweiker v. Chilicky, 487 U.S. 412 (1988). In Chilicky, “Congress ha[d] failed to provide for ‘complete relief’: respondents ha[d] not been given a remedy in damages for emotional distress or for other hardships suffered because of delays in their receipt of Social Security benefits.” 487 U.S. at 425. But, the Court noted, “[t]he absence of statutory relief for a constitutional violation ... does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Id. at 421–22. Rather, “the concept of ‘special factors counselling hesitation in the absence of affirmative action by Congress' ... include[s] an appropriate judicial deference to indications that congressional inaction has not been inadvertent.” Id. at 423. Therefore, “[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration,” courts should not “create[ ] additional Bivens remedies.” Id. Because Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 6 of 12 7 “Congress is the body charged with making the inevitable compromises required in the design of a massive and complex welfare benefits program,” the Court refused to question the legislative decision to exclude certain remedies from that program. Id. at 429. Kassel v. United States Veterans’ Administration, 709 F. Supp. 1194 (D.N.H. 1989) is illustrative of this circumspect approach. In Kassel, this Court declined to extend a Bivens remedy to a VA doctor who was fired for writing a controversial article and claimed a First Amendment violation by VA officials, holding that the administrative scheme available to the plaintiff precluded a Bivens remedy. Id. at 1207. In step with this approach, several courts of appeals and numerous district courts have expressly held in a long line of cases that the Privacy Act’s remedies preclude an action against individual employees for damages under the Constitution in a “Bivens” suit. See Abdelfattah v. DHS, 787 F.3d 524, 534 (D.C. Cir. 2015) (The fact that the Privacy Act provides a comprehensive remedial scheme militates against a court-erected Bivens claim.); Jacobs v. BOP, No. 12-5129, 2012 WL 6603085, at *1 (D.C. Cir. Dec. 17, 2012) (holding that “[t]he district court []correctly concluded appellant may not pursue a Bivens remedy for his claims related to the Privacy Act”); Griffin v. Ashcroft, No. 02-5399, 2003 WL 22097940, at *2 (D.C. Cir. Sept. 3, 2003) (per curiam) (affirming “district court’s dismissal of appellant’s constitutional claims based on the BOP’s alleged maintenance and use of inaccurate information because such claims are encompassed within the Privacy Act’s comprehensive remedial scheme”); Downie v. City of Middleburg Hts., 301 F.3d 688, 696 (6th Cir. 2002) (agreeing with district court that “because the Privacy Act is a comprehensive legislative scheme that provides a meaningful remedy for the kind of wrong [plaintiff] alleges that he suffered, we should not imply a Bivens remedy”); see also Lange v. Taylor, No. 5:10-CT-3097, 2012 WL 255333, at *2-3 (E.D.N.C. Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 7 of 12 8 Jan. 27, 2012); 893 F. Supp. 75, 81-82 (D.D.C. 2012); Lim v. United States, No. DKC10-2574, 2011 WL 2650889, at *8 (D. Md. July 5, 2011); Lewis v. U.S. Parole Comm’n, 770 F. Supp. 2d 246, 251-52 (D.D.C. 2011); Melvin v. SSA, No. 5:09-CV-235, 2010 WL 1979880, at *4 (E.D.N.C. May 13, 2010); Hurt v. D.C. Court Servs., 612 F. Supp. 2d 54, 56 (D.D.C. 2009), aff’d in pertinent part per curiam sub nom. Hurt v. Cromer, No. 09-5224, 2010 WL 604863, at *1 (D.C. Cir. Jan. 21, 2010); Roggio v. FBI, No. 08-4991, 2009 WL 2460780, at *2 (D.N.J. Aug. 11, 2009); Al-Beshrawi v. Arney, No. 5:06CV2114, 2007 WL 1245845, at *3-4 (N.D. Ohio Apr. 27, 2007); Sudnick v. DOD, 474 F. Supp. 2d 91, 100 (D.D.C. 2007); Hatfill v. Ashcroft, 404 F. Supp. 2d 104, 116-17 (D.D.C. 2005); Clark v. BOP, 407 F. Supp. 2d 127, 131 (D.D.C. 2005); Newmark v. Principi, 262 F. Supp. 2d 509, 518-19 (E.D. Pa. 2003); Khalfani v. Sec’y, DVA, No. 94-CV-5720, 1999 WL 138247, at *7 (E.D.N.Y. Mar. 10, 1999); Fares v. INS, 29 F. Supp. 2d 259, 262 (W.D.N.C. 1998); Sullivan v. USPS, 944 F. Supp. 191, 195-96 (W.D.N.Y. 1996); Hughley v. BOP, No. 94-1048, slip op. at 5 (D.D.C. Apr. 30, 1996), aff’d sub nom. Hughley v. Hawks, No. 96-5159, 1997 WL 362725 (D.C. Cir. May 6, 1997); Blazy v. Woolsey, No. 93- 2424, 1996 WL 43554, at *1 (D.D.C. Jan. 31, 1996; Williams v. DVA, 879 F. Supp. 578, 585-87 (E.D. Va. 1995); Mangino v. Dept. of Army, 1994 WL 477260, at *9 (D. Kan. Aug. 24, 1994); Mittleman v. U.S. Treasury, 773 F. Supp. 442, 454 (D.D.C. 1991); Royer v. BOP, No. 1:10-cv- 0146, 2010 WL 4827727, at *5 (E.D. Va. Nov. 19, 2010) (stating that plaintiff’s Bivens claims “may simply collapse into [his] Privacy Act claims, at least insofar as they merely repeat the allegations that the BOP has maintained inaccurate records about [his] affiliation with terrorist groups”); Patterson v. FBI, 705 F. Supp. 1033, 1045 n.16 (D.N.J. 1989) (discussing the extent to which First Amendment claim involves damages resulting from maintenance of records, “such Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 8 of 12 9 an action is apt to be foreclosed by the existence of the Privacy Act”), aff’d, 893 F.2d 595 (3d Cir. 1990). Because the Privacy Act provides a process for review of alleged violations of its provisions, there is no Bivens claim against a federal employee in his or her personal capacity, and the Court should dismiss the plaintiff’s claim against S/A Hastbacka. IV. THE PRIVACY ACT CLAIMS AGAINST THE FBI SHOULD BE DISMISSED BECAUSE THE PLAINTIFF HAS FAILED TO ALLEGE ACTUAL DAMAGES AS REQUIRED BY THE ACT, AND HE HAS THEREFORE FAILED TO STATE A CLAIM THAT ENTITLES HIM TO RELIEF Congress enacted the Privacy Act based on its understanding that the “right to privacy is a personal and fundamental right protected by the Constitution” and that regulating the federal government's “collection, maintenance, use, and dissemination of information” regarding individuals was necessary and proper “to protect the privacy of [such] individuals.” Privacy Act of 1974 (the Act), Pub. L. No. 93-579, § 2(a)(4) and (5), 88 Stat. 1896. The Act accordingly sets forth “detailed instructions” governing the government's “collection, maintenance, use, and dissemination of information” about individuals in agency records. Doe v. Chao, 540 U.S. 614, 618 (2004); see 5 U.S.C. § 552a(a)(3). The Privacy Act, inter alia, regulates and limits the information that agencies may maintain on individuals in systems of records, including a general prohibition against maintaining, collecting, using, or disseminating records describing how individuals exercise their First Amendment rights. 5 U.S.C. §§ 552a(a)(3), (e) and (e)(7). It further provides that agencies must normally give individuals access to records pertaining to them, and directs agencies to promulgate rules allowing individuals to obtain access to and request amendment of such records. 5 U.S.C. § 552a(d) and (f). Subject to statutory exceptions, the Privacy Act also specifies that: “No agency shall disclose any record which is contained in a system of records by Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 9 of 12 10 any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.” 5 U.S.C. § 552a(b); cf. 5 U.S.C. §§ 552a(j) and (k) (exemptions). The Privacy Act authorizes an individual adversely affected by a violation of the Act's anti-disclosure provision to bring a civil action against the responsible agency. 5 U.S.C. § 552a(g)(1)(D). If the agency is found to have acted intentionally or willfully in violating that provision and the plaintiff has sustained actual damages as a result of the violation, the United States will be liable to that individual for his or her actual damages (subject to a $1000 minimum award) and reasonable attorneys' fees and costs. 5 U.S.C. § 552a(g)(4); see Doe, 540 U.S. at 616, 625 n.9. Because the civil damage remedy for improper disclosure is available only to plaintiffs who have sustained actual damages as the result of violations, Mr. Berry has failed to state a claim that would entitle him relief under the Privacy Act. His complaint alleges only “emotional distress resulting from the aforementioned actions and events.” DN 1 at 37, 39. The Supreme Court has definitively settled the issue of emotional distress damages in Privacy Act cases, holding that “the Privacy Act does not unequivocally authorize an award of damages for mental or emotional distress. Accordingly, the Act does not waive the Federal Government’s sovereign immunity from liability for such harms.” F.A.A. v. Cooper, 566 U.S. 284, 304 (2012). See also Iqbal v. DOJ, No. 3:11-cv-369-J-37, 2013 WL 5421952, at *5 (M.D. Fla. Sept. 26, 2013) (“While plaintiff added an allegation that the DOJ placed him on a government watch list in 2011, Plaintiff has not indicated that he suffered any pecuniary loss as a result”). Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 10 of 12 11 By the same token, the statute’s $1,000 minimum damage award is limited to “actual damage” cases. Cooper, 566 U.S. at 295, (quoting Doe, 540 U.S. at 620). Because the Privacy Act does not authorize damage claims for general, non-pecuniary losses such as emotional distress, Mr. Berry’s damage claim against the FBI should be dismissed. V. THE PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE RELIEF Finally, Mr. Berry has made a claim for injunctive relief “prohibiting the defendants from any further violations of the Plaintiff’s constitutional rights, the Privacy Act, and DOJ and FBI rules and regulations.” DN 1, Prayer for Relief, at 10. Injunctive relief under the Privacy Act is available in only two instances – to amend or correct an individual’s record (subsection (g)(1)(a)) or to order production, or permit inspection, of agency records improperly withheld from an individual (subsection (g)(1)(b). Doe v. Stevens, 851 F.2d 1457, 1463 (D.C. Cir. 1988); Edison v. Dept. of the Army, 672 F.2d 840, 846 (11th Cir. 1982); Hanley v. U.S. Department of Justice, 623 F.2d 1138, 1139 (6th Cir. 1980); Parks v. U.S. Internal Revenue Service, 618 F. 2d 677, 684 (10th Cir. 1980). Furthermore, the two sections that allow for injunctive relief (amendment and access) require the exhaustion of administrative remedies.1 The only Privacy Act remedy available to plaintiffs alleging wrongful disclosure is a claim for actual damages, not injunctive relief. Tarullo v. Defense Contract Audit Agency, 600 F. Supp. 2d 352, 358 (D. Conn. 2009); Shields v. Shetler, 682 F. Supp. 1172, 1176 (D. Colo. 1988) (Act “does not create a private right of action to enjoin agency disclosures”). 1 Through pursuit of an amendment request to the agency and a request for administrative review, 5 U.S.C. §§ 552a(d)(2)-(3), exhaustion of administrative remedies is a prerequisite to a civil action for “amendment” of records. This requirement is jurisdictional in nature because it is imposed by the Act itself, whereas the requirement of exhaustion in “access” lawsuits is only jurisprudential in nature, as it is not imposed by the Act itself. See, e.g., Taylor v. Treasury, 127 F.3d 470, 476-77 (5th Cir. 1997). Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 11 of 12 12 Even if the Privacy Act did provide for injunctive relief in disclosure cases, it is not clear what purpose such a remedy would accomplish, insofar as the acts complained of by Mr. Berry are now a matter of public record through this case, as well as through a related FOIA case filed by him. See Berry v. United States Attorney’s Office, No. 17-cv-77-SM, U.S.D.C., D.N.H. Accordingly, Mr. Berry’s claim for injunctive relief should be dismissed. VI. CONCLUSION Special Agent Mark Hastbacka is an improper party for claims arising under the Privacy Act. To the extent that any claim against him arises under the Act, it should be dismissed. Further, S/A Hastbacka is entitled to qualified immunity. The acts alleged against him do not support a claim for personal liability pursuant to Bivens. Accordingly, any claim against him predicated on an alleged constitutional violation should be dismissed. Mr. Berry’s Privacy Act claim against the FBI should be dismissed for failure to state a claim, because he has not alleged any actual damages, as required by the Act; emotional distress damages are not available under the Act. Injunctive relief is not an available remedy for the alleged violations of the Act. The complaint should be dismissed in its entirety. Respectfully submitted, JOHN J. FARLEY Acting United States Attorney Dated: July 3, 2017 By: /s/ Robert J. Rabuck Robert J. Rabuck Assistant U.S. Attorney NH Bar No. 2087 53 Pleasant Street, 4th Floor Concord, NH 03301 603-225-1552 Rob.rabuck@usdoj.gov Case 1:17-cv-00143-LM Document 7-1 Filed 07/03/17 Page 12 of 12