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. See Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). Defendants
move to dismiss Berry's second amended complaint (doc.
no. 34), 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.
34 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. 34 at ¶ 21. Hastbacka requested that he be
called back and left a telephone number where he could be
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. 34 at ¶ 23. Berry wrote Hastbacka and informed
him that his call “has resulted in a
‘confusing' effect on him and his parents.”
Id. at ¶ 26. In that letter, Berry also
requested that Hastbacka tell him how he knew the identity of
his parents and their contact information. Hastbacka,
however, did not respond to this letter.
filed this lawsuit, proceeding pro se, against the FBI and
Hastbacka in April 2017, alleging that Hastbacka and the FBI
violated the Privacy Act by disclosing the existence of his
FOIA request to his parents. Berry also brought a Bivens
claim against Hastbacka, alleging that Hastbacka violated his
privacy rights by disclosing his FOIA request. Berry amended
his complaint in October 2017. That amendment added no new
substantive allegations but did append a copy of the
voicemail that Hastbacka left Berry's parents.
moved to dismiss Berry's amended complaint, arguing that
each of Berry's claims failed as a matter of law. The
court granted defendants' motion to dismiss, holding that
Hastbacka was not a proper defendant under the Privacy Act,
the remedies that Berry sought against the FBI (damages for
emotional distress and injunctive relief) were not available
under the statute, and that no Bivens remedy existed for the
disclosure of a person's private information. Doc. no.
31. The court, however, observed that Berry's complaint
alluded to several other theories of liability. Because Berry
is a pro se litigant, and because Berry had not had the
opportunity to amend the substantive allegations in his
complaint, the court granted defendants' motion to
dismiss without prejudice to Berry filing another complaint
that stated legally sufficient claims against Hastbacka or
March 5, 2018, Berry filed his second amended complaint,
which defendants now move to dismiss. See doc. no. 35.
second amended complaint, Berry alleges two claims for
violation of the Privacy Act, 5 U.S.C. § 552a (Counts I
and II). Berry brings Count I against the FBI and Count II
against both Hastbacka and the FBI. In addition, Berry brings
a Bivens claim against Hastbacka for violation of his Fourth
Amendment rights (Count III).
move to dismiss Count I, arguing that Berry has failed to
allege any damages that would be available under the Privacy
Act. Defendants also contend that Count II, which is brought
under the Privacy Act's criminal penalties provision, 5
U.S.C. § 552a(i), fails because there is no private
right of action under that provision. Finally, defendants
move to dismiss the Bivens claim against Hastbacka, arguing
that Berry has failed to allege a constitutional violation
and that Hastbacka is entitled to qualified immunity. In
response, Berry contends that he has sufficiently pled the
claims in his second amended complaint.
Privacy Act Claims (Counts I and II)
Count I, Berry asserts a claim against the FBI for violating
section (b) of the Privacy Act, which generally prohibits
agencies from disclosing records about a person without his
prior consent. In Count II, Berry asserts a claim against the
FBI and Hastbacka under section (i) of the Privacy Act, which
makes it a criminal misdemeanor punishable by a fine of up to
$5, 000 to disclose records in violation of the Act's
requirements. § 552a(i)(1). Both claims are based on the
allegation that Hastbacka violated the Privacy Act by
contacting Berry's parents and disclosing to them that he
had sent the FBI a FOIA request.
argue that Berry has failed to state a plausible Privacy Act
claim in Count I because he has not alleged that he suffered
actual damages, which are the only damages available under
the Act. In addition, defendants argue that Count II fails
because § 552a(i) does not contain a private right of
action that would allow Berry to bring suit.
response, Berry contends that he has suffered actual damages
and that he should be permitted to proceed to discovery and
trial on the issue of damages. Berry further contends that he
is at ...