Opinion
Case No. 99cv1088 BTM(JFS)
June 4, 2001
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Defendant, the Internal Revenue Service, has filed a Motion for Summary Judgment ("Motion"). For the reasons discussed below, Defendant's Motion is GRANTED.
I. BACKGROUND
Plaintiffs' Second Amended Complaint asserts a cause of action for violation of the Privacy Act, 5 U.S.C. § 552a, and seeks injunctive relief, damages, and attorneys' fees and costs. Plaintiffs allege that they have made requests to Defendant for the production of information pursuant to the Privacy Act but that Defendant has refused to produce all of the information requested.
Plaintiff Kevin Macleod ("Macleod") made a broad request for information from Defendant pursuant to the Freedom of Information Act ("FOIA") by way of a letter dated February 19, 1999. (Vees Decl., Exh. A.) In a letter dated February 24, 1999, Defendant responded by informing Macleod that he needed to provide additional information in order to make a valid FOIA request. (Vees Decl., Exh. B.) In a letter dated April 12, 1999, Macleod attempted to clarify his FOIA request by specifying categories of documents that he was seeking. (Vees Decl., Exh. C.)
Defendant responded to Macleod's FOIA request by letters dated May 6, 1999, May 12, 1999, and May 14, 1999, and released over 500 pages. (Vees Dec., ¶ 5.) Defendant withheld five pages from production on the ground that they were inter-agency memoranda that fell within exemption (b)(5). (Vees Decl., Exh. F.) Apparently, these five pages were ultimately produced to Macleod on March 20, 2001, after Defendant filed its Motion. (Best Decl., ¶ 5.)
II. DISCUSSION
Defendant's Motion for Summary Judgment is granted for the reason that Macleod has not presented any evidence that he made a valid request for information under the Privacy Act. Accordingly, Macleod has not exhausted his administrative remedies under the Privacy Act, and this case must be dismissed without prejudice.
The procedures governing Privacy Act requests directed towards the Internal Revenue Service are set forth in 31 C.F.R. Pt. 1, Subpt. C, App. B. These regulations require that an individual's Privacy Act request, inter alia, state that it is made pursuant to the Privacy Act, specify the name and location of the particular system of records (as set forth in the Notice of Systems) to which access is sought, and list the title and business address of the official designated in the access section for the particular system (as set forth in the Notice of Systems).
Macleod's request for information dated February 19, 1999, and April 12, 1999, do not comply with the requirements for a valid Privacy Act request. These requests do not state that they are being made pursuant to the Privacy Act. Indeed, these requests state that they are being made under FOIA, which has less stringent requirements. Moreover, these requests do not list the systems Macleod wishes to have searched and do not identify the appropriate system officers.
Where a plaintiff asserts a Privacy Act claim but has failed to make a proper Privacy Act request, courts will find that the plaintiff has failed to exhaust his administrative remedies and will dismiss the claim. See, e.g., Taylor v. United States Treasury Dept., 127 F.3d 470 (5th Cir. 1997) (dismissing Privacy Act claims because the plaintiff's Privacy Act request did not comply with the requirements set forth in the regulations); Reeves v. United States, 1994 WL 782235 (E.D. Cal. Nov. 16, 1994) (explaining that plaintiff's failure to identify the name and location of the particular system of records constituted a failure to exhaust administrative remedies); Lillienthal v. Parks, 574 F. Supp. 14 (E.D. Ark. 1983) (dismissing Privacy Act claim for failure to exhaust administrative remedies). Because Macleod has not presented any evidence that he made a valid Privacy Act request, the Court finds that Macleod has failed to exhaust his administrative remedies under the Privacy Act and dismisses his claim without prejudice.
It appears that Macleod did make a proper FOIA request. However, Macleod has not asserted a cause of action under FOIA, 5 U.S.C. § 552, and has not sought leave to amend his complaint. Moreover, based on the evidence before the Court, it seems that all documents responsive to Macleod's FOIA request have been turned over to Macleod.
Injunctive relief is the only relief available under FOIA. 5 U.S.C. § 552(a)(4)(B). Unlike the Privacy Act, FOIA does not provide for monetary damages.
In their "objections" to Defendant's Motion for Summary Judgment, Plaintiffs make arguments regarding sovereign immunity. However, sovereign immunity is not at issue here. Plaintiffs' First Amended Complaint asserted a cause of action based upon the alleged tortious conduct of an IRS employee. The Court dismissed this cause of action with prejudice, holding that the conduct at issue was not actionable under the FTCA and that the United States had not waived its sovereign immunity with respect to this claim. Plaintiffs subsequently filed a motion for reconsideration. The Court denied the motion for reconsideration as it pertained to this claim. Accordingly, the issue of sovereign immunity is irrelevant at this time.
Plaintiffs also request leave to add two new IRS agents to the list of IRS agents they are suing for tortious conduct. This request is denied. As discussed above, Plaintiffs' claim based upon the alleged tortious conduct of an IRS employee was dismissed with prejudice. Plaintiffs' First Amended Complaint also asserted a cause of action against various IRS employees for acts of evildoing, conspiracy, incompetence, and dishonesty, which the Court construed as an action under 26 U.S.C. § 7433. This cause of action was dismissed with leave to amend. However, Plaintiffs did not include this cause of action in their Second Amended Complaint.
III. CONCLUSION
For the reasons discussed above, Defendant's Motion for Summary Judgment [30-1] is GRANTED. Plaintiffs' Privacy Act claim is dismissed without prejudice. Judgment shall be entered accordingly.
IT IS SO ORDERED.