The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Plaintiff David Bowles ("Bowles" or "Plaintiff"), a pro se litigant and inmate in federal custody, brings suit against the Federal Bureau of Prisons ("BOP") and United States Probation Department (otherwise known as the "United States Probation and Pretrial Services System," hereinafter "Probation Department") (collectively "Defendants") for violation of the Privacy Act, 5 U.S.C. § 552a, which provides for legal remedies against federal agencies that fail to maintain accurate records for an individual. Specifically, Bowles alleges that the Probation Department incorrectly included in his presentence report information regarding sex offense-related charges, and that this information was used by the BOP to incorrectly assign him a "Sex Offender Public Safety Factor" as part of his custody classification score. Defendants move to dismiss Plaintiff's complaint as untimely and failing to state a cause of action. Defendants' motion is GRANTED. The Probation Department may not be sued under the Privacy Act because it is exempt from the statute as part of the "courts of the United States." The BOP is dismissed because presentence reports held in the BOP's Inmate Central Filing System are exempt from the Privacy Act.
Plaintiff is incarcerated at the Federal Correctional Institution at Otisville, New York. Compl. at 1. He was sentenced in February of 2000 for armed bank robbery. As part of the sentencing process and to assist the judge in rendering an appropriate sentence, the Probation Department prepared a "presentence report," which collects and provides the court with information about the individual's history (family, education, criminal record, etc.) and details about the crime for which they are being sentenced. Bowles' presentence report included information about a 1995 conviction in New York State for Third Degree Assault; the report described the underlying facts of that crime as including a sexual assault, as set out in the PreSentence Investigation Report of David Bowles, ("Presentence Report" or "PSR"), PSR at ¶¶ 77-78 (January 27, 2000). Based on the conduct described in the PSR, the BOP assigned Bowles a custody classification score that included a Sex Offender Public Safety Factor ("SOPSF"). See Compl. at 2; Defs.' Ex. 6 (BOP response to Plaintiff's request to alter custody classification). Bowles alleges that this information is incorrect because he was not convicted of a sexual offense in the 1995 state criminal action, but rather pled guilty to Third Degree Assault, which does not include any sexual-offense based elements. Compl. at 2-3; see N.Y. Penal Law § 120.00 (McKinney 2009) (elements of third degree assault). Pursuant to the Privacy Act, Plaintiff alleges that the BOP and Probation Department "intentionally and willfully" failed to maintain accurate records, and that the resulting inaccurate custody score adversely affected him by, among other things, denying him access to lower-level security programs and certain employment programs. Compl. at 2. Bowles requests his PSR report and other criminal records be amended, his custody classification score reconsidered, the BOP provide access to lesser security programs and previously restricted employment opportunities, a written apology, and $2.5 million in damages. Id. at 3-4.
Defendants move to dismiss the Complaint under Rule 12(b)(1) for lack of subject matter jurisdiction based on untimeliness of the complaint, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Defendants collectively argue that this Court lacks jurisdiction because Bowles' claim is barred by the Privacy Act's two-year statute of limitations. They further argue that Plaintiff fails to state a claim against either defendant, because (1) the Probation Department defendant may not be sued under the Privacy Act and (2) the records in question, held by the BOP defendant, are exempt from the Act.*fn1
In considering a motion to dismiss for lack of subject matter jurisdiction, a federal court need not accept as true the contested jurisdictional allegations. See Jones v. Astrue, 526 F. Supp. 2d 455, 458 (S.D.N.Y. 2007). The party that seeks to show that the court has subject matter jurisidction, here the Plaintiff, must demonstrate that jurisdiction exists. Id. Though no presumption of truth attaches to jurisdictional allegations, "a court should construe all ambiguities and draw all inferences in a plaintiff's favor." Id. (internal quotations omitted). "A party appearing without counsel is afforded extra leeway in meeting the procedural rules of litigation," and "courts should not allow a pro se litigant's rights to be impaired by harsh application of technical rules." Sims v. Blot, 534 F.3d 117, 133 (2d Cir. 2008) (internal quotations and citations omitted). The Court construes Plaintiff's opposition to Defendant's motion "to raise the strongest arguments they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
The Privacy Act, 5 U.S.C. § 552a, delineates how and when a federal agency may maintain and disclose collected information about individual citizens and lawfully-admitted aliens. The Act "provide[s] certain safeguards for an individual against an invasion of personal privacy by requiring governmental agencies to maintain accurate records and providing individuals with more control over the gathering, dissemination, and accuracy of agency information about themselves." Devine v. United States, 202 F.3d 547, 550 (2d Cir. 2000). Among other things, an agency is required to "maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination." § 552a(e)(5). The Act provides for a civil remedy where an agency has violated these requirements and the individual has suffered an adverse determination as a consequence; the court may assess damages and order that the record be amended in accordance with the request. § 552a(g).
Both Defendants claim that Plaintiff's Complaint is untimely and must be dismissed for lack of subject matter jurisdiction. They argue that the statute runs from the date of discovery, and that Plaintiff must have been aware of the alleged misrepresentations no later than March 10, 2006, when he submitted an administrative grievance to the Federal Correctional Institution. As such, they contend that Bowles exceeded the two-year statute when he signed his complaint on December 8, 2008 and filed it on December 16, 2008. Defs.' Br. at 9-10. In the complaint, Bowles alleges that he made "efforts to exhaust administrative remedies" once he "became aware of the adverse determinations.". Compl. at 3. Defendants argue that even if the statute of limitations is tolled during this administrative review, Plaintiff's claim still must fail. The BOP's Administrative Remedy Program ("ARP") provides for a four-level review process. See 28 C.F.R. §§ 542.13-542.15. Plaintiff received a formal denial of his claim from the third level of review, the Regional Director, on May 2, 2006. See Johnson Decl., Ex. 8 (Letter from D. Scott Dodrill, Regional Director, to David Bowles, May 2, 2006). Per federal regulation, Plaintiff then had 30 days -- till June 1, 2006 -- to appeal to the final level of administrative review. Bowles alleges that he made this final appeal in a timely fashion. See Pl.'s Opp. Br. at ¶ 10. Upon receipt, the BOP had 40 days to respond to Plaintiff's final appeal of his Privacy Act claim. See 28 C.F.R. § 542.15(a). Although the date is not clear from the record, if the BOP received Plaintiff's appeal on the last day he was allowed to file, i.e. June 1, 2006, it had until July 11, 2006 to respond to Bowles' claim. Defendants argue that the two year statute of limitations began to run on that date and therefore Bowles had from July 11, 2006 to July 11, 2008 to file his claim in federal court. Since Plaintiff filed in December 2008, Defendants contend that the filing was still five months late and must be dismissed as untimely.
Actions pursuant to the Privacy Act must be brought within two years "from the date on which the cause of action arises" or within two years of the discovery of the alleged misrepresentation of the information. 5 U.S.C. § 552a(g)(5). Filing of the suit within the period specified is a "jurisdictional prerequisite." Akutowicz v. United States, 859 F.2d 1122, 1126 (2d Cir. 1988); see also Peterson v. Tomaselli, No. 02 civ. 6325, 2003 WL 22213125, *8 (S.D.N.Y. Sept. 29, 2003) (dismissing untimely Privacy Act claim brought by state prisoner).
Assuming that the claim is tolled during administrative review, and the cases go both ways, the facts here present a further wrinkle: unlike where the BOP affirmatively notifies an inmate of its ruling on his administrative appeal, here forty days came and went, and the BOP failed to notify the Plaintiff one way or the other. Worse yet, Defendants have provided no explanation as to how this plaintiff, or for that matter any similarly situated persons, are made aware of this timetable; there is, for instance, no indication that an inmate is given notice of the 40-day period on the grievance form. Starting the clock running after the statutory review period concludes, without any notice to a pro se plaintiff, formal or otherwise, raises serious questions of fairness. Of even greater concern is that Plaintiff only missed the filing deadline by a few months, and demonstrated diligence in trying to determine whether the administrative review had been completed. See Pl.'s Opp'n. Br. at 3-4 (describing his efforts to have Congressman Charles B. Rangel's Office and Judge Cote look into the matter after he received no response from the BOP, as well as his attempt to file an additional administrative grievance form). Further, the resolution of this issue is by no means clear as a matter of law; the fact-specific nature of this inquiry renders it unsuitable for review on a motion to dismiss. See Ramirez v. Dept. of Justice, 594 F. Supp. 2d 58, 62-63 (D.D.C. 2009) ("Because statute of limitations issues often depend on contested questions of fact, the Court must exercise caution before dismissing a complaint on statute of limitations grounds based solely on the face of the complaint."). The troubling failure of the BOP to do their job and ...