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Berry v. Federal Bureau of Investigation

United States District Court, D. New Hampshire

February 5, 2018

Jason Berry
v.
Federal Bureau of Investigation, et al.

          ORDER

          Landya McCafferty United States District Judge

         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).

         BACKGROUND[1]

         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 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.”).

         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. Berry objects.

         I. 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. See 5 U.S.C. ยง 552a(g)(1). That provision, however, only ...


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