United States District Court, D. New Hampshire
McCafferty United States District Judge
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.
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).
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.
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 requested that Berry call
him back and left a telephone number where Berry could reach
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.
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
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.
Claims Against Hastbacka
complaint asserts claims against Hastbacka under the Privacy
Act and under Bivens, 403 U.S. at 388.
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. See 5 U.S.C. §
552a(g)(1). That provision, however, only ...