Opinion
Civil Action 02-01732 (HHK).
March 11, 2005
MEMORANDUM OPINION
Plaintiffs, a group of 159 individuals proceeding pro se, bring this action against defendants Michael Leavitt, in his official capacity as Secretary of Health and Human Services ("HHS"), and Jo Anne Barnhart, in her official capacity as Commissioner of the Social Security Administration ("SSA"). Plaintiffs allege that defendants have violated the Privacy Act of 1974, ("Privacy Act"), 5 U.S.C. § 552a et seq., by improperly maintaining records on plaintiffs and by failing to adequately respond to plaintiffs' requests for access to those records, and that defendants have also defrauded plaintiffs in violation of unspecified federal statutes. Presently before the court is defendants' motion to dismiss, or in the alternative, for summary judgment [#17]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be granted.
Plaintiffs, originally 161 individuals, first brought suit on August 27, 2002. Two of the plaintiffs (Ted Williams and Charles Stevens) have since voluntarily dismissed their claims. Although the entire group of plaintiffs signed the original and amended complaints, subsequent filings have been signed by two individuals, Lawrence Maxwell and Vasilios Lambros, each identified as "attorney for plaintiff pro se," on behalf of all plaintiffs.
Under Fed.R.Civ.P. 25(d)(1), Leavitt is substituted for his predecessor, Tommy Thompson, who was originally named as a defendant in the complaint.
In their original complaint, plaintiffs named only HHS as a defendant. On February 21, 2003, they amended their complaint to add SSA as a defendant.
The Privacy Act authorizes civil actions only against an "agency," not against an individual official or employee of that agency. Armstrong v. United States Bureau of Prisons, 976 F. Supp. 17, 23 (D.D.C. 1997). The head of an agency, however, may properly be named as a defendant in a Privacy Act lawsuit if sued in her official capacity. Jarrell v. Tisch, 656 F. Supp. 237 (D.D.C. 1987). Because plaintiffs bring suit against defendants in their official capacities, this opinion will refer to each defendant by agency acronym, rather than by the surname of the agency head.
I. BACKGROUND
A. Factual History
Between August 20, 2001 and September 13, 2001, each plaintiff filed a separate Privacy Act request with the SSA's Office of Disclosure Policy for records pertaining to herself. Am. Compl. ¶ 179. Aside from the identity of the requester (and therefore the name attached to the records sought) the requests were "identical." Id. ¶ 180. After reciting extensive sections of the Privacy Act, this initial letter asked for five categories of information, namely any records containing information on the requester which the agency used:
Even at this preliminary stage, plaintiffs indicated that their actual objective might be litigating the legality or efficacy of the Social Security system, rather than obtaining records from SSA, noting in their request letters that the agency's failure to produce the records sought, or providing a statement that the records did not exist, would lead plaintiffs to "immediate filing of a civil action against the Secretary of Health and Human Services." Am. Compl., Ex. A at 4-5.
(1) "to determine that [SSA] was required by law . . . to establish a Social Security Number" for the requester;
(2) to determine the requester's entitlement to receive benefits from the United States government;
(3) to determine if the requester is a United States citizen;
(4) to determine if the requester is considered "federal personnel"; and
(5) "to accomplish the duties of [SSA] with regard to" the requester.Id., Ex. A at 3-4.
Plaintiffs' requests were referred to SSA's Office of Public Inquiries ("OPI") for response. Defs.' Mot. to Dismiss/Mot. for Summ. J., Ex. 1 (Charles Mullen Decl.) ¶ 5. Not initially realizing that plaintiffs all requested essentially identical records, OPI responded to three individual plaintiffs — Willard Allen, Jerald Williams, and Paul Obersteller — on September 20, 2001. Id. ¶ 6; Defs.' Statement of Material Facts not in Dispute ("Statement of Material Facts") ¶ 3. This response letter, signed by OPI Associate Commissioner Charles Mullen ("Mullen"), instructed those three plaintiffs how to obtain earnings or benefits information, and noted that if they sought a different type of record, they would have to identify the system or systems of records they would like searched, as required by SSA agency regulations. Am. Compl., Ex. B. This response letter did not cite the relevant regulations, although it provided a telephone number plaintiffs could call for assistance in reviewing SSA's various records systems.
These three plaintiffs wrote once more to SSA, on or around December 24, 2001, attacking SSA's response as "unintelligible" and "intentionally evasive," Id., Ex. C at 1. They argued that contrary to SSA's position, they could not be required to name specific records systems to be searched, citing a Congressional committee report published as "A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records" ("Citizen's Guide"). Id. at 2-3.
Prior to responding to the remaining plaintiffs' requests, SSA conducted a computerized search of each requester to determine if that individual had filed a claim for Social Security benefits. Defs.' Statement of Material Facts ¶ 6. Accordingly, SSA sent two versions of a more detailed response letter to the remaining plaintiffs on November 9, 2001 and December 6, 2001. These letters provided numbered responses to each of plaintiffs' five record requests, and differed only in that the letter directed to plaintiffs whom SSA determined had filed a claim for Social Security benefits were also referred to SSA's "program service centers" for additional information about benefits eligibility. Compare Defs.' Mot. to Dismiss/Mot. for Summ. J., Ex. 2 at 2-3, with Am. Compl., Ex. D at 2-3. This more detailed letter, sent to all but the three aforementioned plaintiffs, did not state that the requester needed to identify the system of record or records she wanted SSA to search.
Unsatisfied with this response, plaintiffs wrote back to SSA on or around December 19, 2001, decrying SSA's "continued failure to comply with federal law" and threatening suit unless SSA identified and produced records related to each of plaintiffs' five initial record requests within ten days of receipt of their follow-up letter. Id., Ex. E at 2-5. Finally, Mullen directed OPI to issue a second reply to all plaintiffs on January 18, 2002, acknowledging their dissatisfaction with SSA's earlier response but noting that the agency would have "nothing to add to the information . . . previously furnished." Defs.' Mot. to Dismiss/Mot. for Summ. J., Ex. 3. This action followed.
B. Privacy Act
The Privacy Act regulates the collection, maintenance, use, and dissemination of an individual's personal information by federal government agencies. See 5 U.S.C. § 552a(e). The Act provides that each agency that maintains a "system of records" shall maintain "only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President." Id. § 552a(e)(1). The Privacy Act also states that "upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system," the agency shall provide the individual with access to review such records. Id. § 552a(d)(1). Additionally, the Privacy Act directs agencies to promulgate rules which "establish procedures for the disclosure to an individual of his record or information pertaining to him," id. § 552a(f)(3), and to publish these procedures as well as the systems of records maintained by the agency, and the various categories of records contained within each system. Id. § 552a(e)(4). Accordingly, agencies have express statutory authority to establish their own regulations which may vary from agency to agency.
II. ANALYSIS
A. Legal Standard
1. Dismissal
A motion to dismiss is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Martin v. Ezeagu, 816 F. Supp. 20, 23 (D.D.C. 1993) (internal quotation marks omitted); see Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (stating that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). In addition, the court must "construe the complaint in the light most favorable to [the] plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations." In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (stating that the court must give the plaintiff "the benefit of all inferences that can be derived from the facts alleged").
2. Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. The non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50.
B. Claims
1. Access to Records
Plaintiffs concede that they have not submitted any record requests to HHS, noting that their "Privacy Act claims target Defendant Barnhill [sic], not Defendant Thompson." Pls.' Opp'n at 12. Plaintiffs, therefore, may not claim that HHS improperly denied them access to records since they never asked for such access. See Muhammad v. United States Bureau of Prisons, 789 F. Supp. 449, 450 (D.D.C. 1992) (dismissing Privacy Act claim because the "[p]laintiff's failure to request the documents directly from the agencies constitutes a failure to exhaust administrative remedies.").
As for the record requests they did submit, plaintiffs contend that SSA has either "intentionally and willfully failed or refused to produce" the requested records, or failed to "admit that the requested records do not exist." Am. Compl. ¶ 195. The agency retorts that plaintiffs have failed to exhaust their administrative remedies since SSA regulations require that requesters identify the records system or systems which the agency should search for the desired records. The relevant regulation announces to a requester that she "must specify which systems of records you wish to have searched, and the records to which you wish to have access . . . the necessary particulars are set forth in the notices of systems of records which are published in the Federal Register." 20 C.F.R. § 401.40(b). SSA's regulations also provide that requesters "must give enough identifying information about the record you want to enable us to find your particular record. This identifying information should include the system of records in which the record is located." Id. § 401.40(c).
SSA alerted only the first three plaintiffs — Willard Allen, Jerald Williams, and Paul Obersteller — to this requirement, which plaintiffs assert is "groundless." Am. Compl. ¶ 182. Plaintiffs insist that they are not required to identify the systems of records they want searched, and that SSA's requirement directly contravenes the will of Congress. Pls.' Opp'n at 14, 18. In support, they cite to the Citizen's Guide, a report of the House of Representatives Committee on Government Reform published by the Government Printing Office. While the guide notes that "[t]he fastest way to make a Privacy Act request is to identify the specific system of records," plaintiffs highlight its statement that "[a] requester is not required to identify the specific system of records that contains the information being sought. It is sufficient to identify the agency that has the records." A CITIZEN'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS, H.R. REP. NO. 108-272, 108TH CONG., 1STSESS., at 25 (2003) (emphasis added). What plaintiffs fail to mention is that this report makes clear it is intended as an informational overview, which only provides a "general introduction" to the Freedom of Information Act and the Privacy Act and "offers neither a comprehensive explanation of the details of these acts nor an analysis of case law." Id. at 5. Readers are cautioned "against treating the neutrally written descriptions contained in this report as definitive expressions of the committee's view of the law or congressional intent," id. at 5 n. 13; urged to "consult other sources," id. at 5; and directed to review specific materials available with each agency, since each agency or agency component "has its own Privacy Act rules." Id. at 25 n. 37. The guide also notes that "[a]n agency will inform requesters of any special identification requirements." Id. at 26.
This guide is also available on the Internet at: http://www.gpo.gov/congress/house, and at: http://www.house.gov/reform. Numerous government agencies and non-governmental organizations have also made the Citizen's Guide accessible on their own Internet sites. See, e.g., http://www.fas.org/sgp/foia/citizen.html.
In general, "[a]gency regulations promulgated pursuant to specific congressional authority are presumptively valid and are entitled to great deference." King v. Califano, 471 F. Supp. 180, 181 (D.D.C. 1979) (citing Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971)). There is no indication that Congress intended the Citizen's Guide to invalidate agency rules required by the Privacy Act. In the specific context of the Privacy Act or the Freedom of Information Act, courts have consistently upheld agency regulations requiring requesters to identify either some information about the type of documents sought or the record system(s) where the agency should search, and have dismissed claims where plaintiffs have neglected to do so for failure to exhaust administrative remedies. See Kessler v. United States, 899 F. Supp. 644, 645 (D.D.C. 1995); Taylor v. United States Treasury Dep't, 127 F.3d 470, 474 (5th Cir. 1997); Lilienthal v. Parks, 574 F. Supp. 14, 18 (E.D. Ark. 1983). Although SSA is remiss for failing to alert the vast majority of plaintiffs that they needed to identify the record system(s) they wanted to be searched, plaintiffs cannot obtain judicial review over the agency's written response to their record requests because "it is as if [they] had made no request at all on which [SSA] could render a determination." Kessler, 899 F. Supp. at 645. The court therefore lacks subject matter jurisdiction over plaintiffs' access to records claim, and dismisses this claim without prejudice.
2. Maintenance of Records
The Privacy Act requires agencies to "maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President." 5 U.S.C. § 552a(e)(1); see also Reuber v. United States, 829 F.2d 133, 138 (D.C. Cir. 1987) (refusing to declare agency in violation of Privacy Act when retention of information was relevant and necessary to agency's legal purpose). Plaintiffs claim that their rights under the Privacy Act are violated by defendants "maintaining records that are not authorized to be maintained" and which were "illegally obtained." Am. Compl. ¶ 1 (capitalization omitted).
An individual need not request records from an agency as a prerequisite to filing suit against that agency for the unlawful maintenance or dissemination of records. See, e.g., 5 U.S.C. §§ 552a(e)(1) and (g)(1)(D); see also Haase v. Sessions, 893 F.2d 370, 374-75 (D.C. Cir. 1990) (citation omitted). With regard to HHS, plaintiffs make a lone reference in their complaint to that agency's improper maintenance of records, noting that HHS "intentionally and willfully chose to maintain records for which there exists no lawful authority," Am. Compl. ¶ 190. Plaintiffs say nothing else of the matter, identifying neither any possible records in question nor providing any indication that HHS maintains such records unlawfully, if at all. Bereft of any factual allegations to support it, this claim must perish.
With regard to SSA, plaintiffs simply announce that "none of the records maintained by the SSA are maintained in compliance with federal law." Id. ¶ 189. Plaintiffs clearly object to SSA's maintenance of any records pertaining to them. The question is whether they have a legally cognizable basis for doing so, and here they come up short. At one point, plaintiffs assert that SSA's response to their record requests demonstrates that the agency "has acknowledged in full that all records maintained by the SSA are maintained absent any lawful authority." Id. ¶ 186 (capitalization omitted). SSA's response to the record requests, though, simply stated that "no specific record required [SSA] to establish a Social Security number (SSN) for [plaintiffs],"Am. Compl., Ex. D at 1, not that no legal authority exists to authorize SSA to establish Social Security numbers or maintain records to effectuate this purpose. Plaintiffs fail to demonstrate any inferential link between the plain language of SSA's response and their assertion that the agency has admitted that all its records are maintained unlawfully. The remainder of plaintiffs' argument here is similarly devoid of any factual allegations that might breathe life into this claim. For example, plaintiffs announce they will instruct the court why "SSA can only maintain records on federal personnel who are entitled to Social Security Benefits," (capitalizations and emphasis omitted), Pls.' Opp'n at 3, but this promised explanation never appears. In short, plaintiffs present neither concrete factual allegations nor coherent argument to challenge the validity of SSA's maintenance of any records. Accordingly, the court grants summary judgment for defendants on this issue.
3. Other Claims
Plaintiffs purport to raise claims against defendants on the basis of "federal statutes both criminal and civil which prohibit fraud, schemes to defraud, extortion, and theft by deception." Am. Compl. ¶ 3. They devote extensive verbiage to their assertions that defendants fraudulently caused them to believe they are required to have a Social Security number, id. ¶¶ 171, 197; forced plaintiffs to obtain Social Security numbers, id. ¶ 172; threatened some plaintiffs with loss of property or incarceration, or actually carried out such threats, id. ¶¶ 174, 198; and fraudulently "exacted from the plaintiffs millions of dollars," id. ¶ 201.
The Federal Rules of Civil Procedure require that a pleading contain "a short and plain statement of the grounds upon which the court's jurisdiction depends," and a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(1) — (2). Plaintiffs deliver neither. While it is true that they "need not provide extensive factual details" in their complaint, their "'short and plain statement' must at least include some factual assertions" to put defendants on notice of the "the event being sued upon." Flowers v. Executive Office of the President, 142 F. Supp. 2d 38, 46-47 (D.D.C. 2001) (citation omitted). Plaintiffs fail to allege any facts in support of their charges of fraud, extortion, and conspiracy on the part of defendants. The court is not "required to speculate that factual propositions unmentioned, or evidentiary links unrevealed," are among the facts plaintiffs seek to establish at some later date. ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 472 (D.C. Cir. 1991) (citation omitted) (upholding dismissal of complaint omitting essential elements of stated claims). Regardless of the intensity of plaintiffs' convictions, or the hyperbole of their filings, their claims cannot be sustained because they do not advance beyond pure conjecture.
Plaintiffs request various other forms of declarative and injunctive relief unrelated to the Privacy Act. For instance, they seek declarations that the Internal Revenue Service was never created by Congress; that the regulatory authority of the Secretary of the Treasury to collect taxes applies only to alcohol, tobacco, and firearms; that none of plaintiffs are involved in commercial activities that produce taxable income; that Social Security numbers have been fraudulently assigned to plaintiffs; and that the Internal Revenue Code applies only to federal employees. Am. Compl. at 34-35. When faced with similar "shopworn arguments characteristic of taxprotester rhetoric," Leonard v. Comm'r of Internal Revenue, T.C.M. 1998-290, 1998 WL 453668 (T.C. 1998), courts have readily dismissed such claims as frivolous. See, e.g., United States v. Collins, 920 F.2d 619, 629-30 (10th Cir. 1990); United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir. 1991); Parker v. Comm'r of Internal Revenue, 724 F.2d 469, 471-72 (5th Cir. 1984). This court finds that plaintiffs' present claims require the same disposition.
III. CONCLUSION
For the foregoing reasons, the court concludes that defendants' motion to dismiss, or in the alternative for summary judgment, must be granted. An appropriate order accompanies this memorandum opinion.