Cleveland Hankerson v. United States ( 2015 )

Case: 14-10781 Date Filed: 02/24/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10781
Non-Argument Calendar
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D.C. Docket No. 5:13-cv-00078-MTT-CHW
CLEVELAND HANKERSON,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Department of Parole and Probation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
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(February 24, 2015)
Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Cleveland Hankerson, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his mandamus petition, filed pursuant to 28 U.S.C.
§ 1361, which sought to compel the U.S. Probation Office to respond to his request
to amend his 1992 presentence investigation report (PSI). On appeal, Hankerson
argues that the district court erred in dismissing his mandamus petition because the
Privacy Act, 5 U.S.C. § 522a(g)(1), provides him with a civil remedy against the
Probation Office. He also argues that the sentencing court used allegedly
inaccurate information in the PSI to impose an unwarranted career offender
enhancement.
We review a district court’s refusal to issue a writ of mandamus for abuse of
discretion. In re Stewart, 641 F.3d 1271, 1275 (11th Cir. 2011). In the case of a
pro se action, we will construe the petition more liberally than we would formal
pleadings drafted by attorneys. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.
1990).
Pursuant to 28 U.S.C. § 1361, federal courts have jurisdiction over
mandamus actions seeking “to compel an officer or employee of the United States
or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.
However, mandamus relief is “an extraordinary remedy which should be utilized
only in the clearest and most compelling of cases.” Cash v. Barnhart, 327 F.3d
1252, 1257 (11th Cir. 2003). Thus, a writ of mandamus is only appropriate if the
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petitioner demonstrates that: (1) he has a clear right to the relief requested; (2) the
respondent has a clear duty to act; and (3) no other adequate remedy is available.
Cash, 327 F.3d at 1258.
In certain circumstances, the Privacy Act allows an individual to bring a
civil action against a government agency if that agency refuses to correct
inaccurate information in its records. See 5 U.S.C. § 552a(g)(1). However, this
private right of action only applies to federal agencies. Schwier v. Cox, 340 F.3d
1284, 1287 (11th Cir. 2003). The definition of “agency” does not include “the
courts of the United States.” 5 U.S.C. § 551(1)(B). Because the Probation Office
acts as a liaison between the sentencing court and the defendant, it serves as “an
arm of the court.” United States v. Bernardine, 237 F.3d 1279, 1283 (11th Cir.
2001).
Although we have not squarely addressed whether the Probation Office is
exempt from the Privacy Act, it is clear that § 551(1)(B) exempts court documents
and reports from disclosure under the Privacy Act and FOIA. See Lovell v.
Alderete, 630 F.2d 428, 434 (5th Cir. 1980) (holding that a parole recommendation
report was exempt from FOIA due to the exception for federal courts in
§ 551(1)(B)).
Therefore, the district court did not abuse its discretion by dismissing
Hankerson’s mandamus petition. Hankerson has not demonstrated a clear right to
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relief against the Probation Office because, by definition, the Privacy Act only
applies to federal agencies, not to federal courts. See 5 U.S.C. §§ 551(1)(B),
552a(g)(1). Furthermore, Hankerson could have asserted his Privacy Act claim in
a civil action under 5 U.S.C. § 552a(g)(1), and his arguments related to his
sentence could have been brought on direct appeal or in an earlier 28 U.S.C.
§ 2255 motion. As such, Hankerson has not demonstrated a clear right to relief,
and, even if he has, there were adequate remedies other than mandamus available.
Accordingly, mandamus relief was not appropriate, and the district court did not
err in dismissing his mandamus petition.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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