Rouse v. Dost ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEON R. ROUSE,  No. 06-15967
Plaintiff-Appellant,
D.C. No.
v.
CV-05-00620-SPK
UNITED STATES DEPARTMENT OF
STATE; JOHN NEGROPONTE; THOMAS  ORDER
AMENDING
HUBBARD; JOHN CAUFIELD; MARTHA
OPINION AND
SARDINAS; PAUL BOYD; JOSEPH
AMENDED
BRACKEN,
OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Samuel P. King, District Judge, Presiding
Argued and Submitted
September 12, 2008—San Francisco, California
Filed November 24, 2008
Amended May 22, 2009
Before: Diarmuid F. O’Scannlain, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
6101
6104 ROUSE v. UNITED STATES DEP’T OF STATE
COUNSEL
Kari E. Hong, Law Offices of Kari E. Hong, Oakland, Cali-
fornia, argued the cause for the plaintiff-appellant and filed
the briefs.
Derrick K. Watson, Assistant United States Attorney, Hono-
lulu, Hawaii, argued the cause for the defendants-appellees;
Lawrence L. Tong, Assistant United States Attorney, Hono-
lulu, Hawaii, filed the brief; Edward H. Kubo, Jr., United
States Attorney, District of Hawaii; Jeremy M. Weinberg,
Brian J. Egan, and Shawn M. Pompian, United States Depart-
ment of State, Office of the Legal Adviser, Washington, D.C.,
were on the brief.
ORDER
I
The opinion filed in this case on November 24, 2008, is
amended as follows:
At page 15723 of the slip opinion, line 23, after the sen-
tence concluding < accuracy and access claims. > delete the
remainder of the language in that Part and replace with < Our
discussion, however, is limited to his accuracy claims.
Because Rouse concedes that he received a copy of his full
embassy file, his access claims are moot.1
1
“[P]articular violations of the [Privacy] Act [are linked] to particular
remedies in a specific and detailed manner.” Cell. Assocs., Inc. v. Nat’l
Insts. of Health, 579 F.2d 1155, 1158 (9th Cir. 1978). With respect to suits
for access violations, the only remedy available is for the court to “enjoin
ROUSE v. UNITED STATES DEP’T OF STATE 6105
We review the district court’s dismissal of Rouse’s claims
de novo, see Weber v. Dep’t of Veterans Affairs, 521 F.3d
1061, 1065 (9th Cir. 2008), accepting “all material allegations
of the complaint” as true and construing “all reasonable infer-
ences” in favor of the nonmoving party, Navarro v. Block,
250 F.3d 729, 732 (9th Cir. 2001). >
At page 15727 of the slip opinion, line 4, delete the two
sentences and footnotes following the sentence concluding
with < § 652E. >
At page 15727 of the slip opinion, line 9, delete < Having
decided that the statute of limitations with respect to Rouse’s
“accuracy” claims is not jurisdictional, we > and replace with
< We >.
At pages 15728-30 delete the entirety of subpart C.
At page 15731, line 2, delete < Even if the complaint were
not time barred, Rouse’s claims would fail on the merits. As
we lack jurisdiction over his access claim, we consider only
Rouse’s accuracy claims.2 > and replace with < Having been
assured of our jurisdiction, we decline to decide whether equi-
table tolling is warranted on the facts of this case. Instead, we
proceed to the merits. >
the agency from withholding the records and order the production to the
complainant of any agency records improperly withheld from him.” 5
U.S.C. § 552a(g)(3)(A); see Thurston v. United States, 810 F.2d 438, 447
(4th Cir. 1987). When a party, such as Rouse, has already received a copy
of the requested records, we cannot afford him any further relief. Other
courts have held that dismissal for mootness is appropriate in such circum-
stances, even where the records were not delivered in a timely fashion,
see, e.g., Lovell v. Alderete, 630 F.2d 428, 430-31 (5th Cir. 1980), and we
have so held in the analogous FOIA context, see, e.g., Carter v. Veterans
Admin., 780 F.2d 1479, 1481 (9th Cir. 1986).
2
These are listed in Rouse’s complaint as his First, Second, Fourth, and
Fifth Causes of Action.
6106 ROUSE v. UNITED STATES DEP’T OF STATE
At page 15734, line 15, delete < No amendment would be
able to cure either the statute of limitations violation,3 the lack
of causation, or the fact that Department regulations do not
provide Rouse with a cause of action. > and replace with < No
amendment would be able to cure either Rouse’s inability to
establish causation as a matter of law or the fact that Depart-
ment regulations do not provide him with a cause of action.>
II
The panel has unanimously voted to deny the petition for
rehearing and the petition for rehearing en banc. The full
court has been advised of the petition for rehearing en banc
and no active judge has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en
banc are DENIED. No further petitions for rehearing or
rehearing en banc may be filed.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a United States citizen may state
a claim against the U.S. Department of State under the Pri-
vacy Act for damages arising from his imprisonment in a for-
eign country.
3
For example, no amendment can explain how Rouse could have dili-
gently preserved his rights in light of the fact that he filed an action with
the UNHRC, but failed timely to file his Privacy Act complaint in federal
court.
ROUSE v. UNITED STATES DEP’T OF STATE 6107
I
A
1
Leon Rouse is a citizen of the United States. On October
4, 1995, he was arrested in the Philippines when police
entered his hotel room and found him and another individual,
Godfrey Domingo, undressed. Domingo signed an affidavit
stating he was a minor and that he and Rouse had engaged in
sexual relations. Though Domingo later disavowed the affida-
vit, Rouse was charged under Philippine law with violating
the “Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act.” The trial court ignored
Domingo’s repudiation and convicted Rouse, relying on the
original affidavit, testimony indicating Rouse had engaged in
consensual sex with a twenty-year-old male who “look[ed]
like a minor,” and the fact that Domingo and Rouse were
found undressed together. Rouse continued to challenge his
conviction in Philippine courts, but was sentenced to over ten
years imprisonment on January 12, 1998. After eight years, he
was released for medical reasons and deported to the United
States.
2
On January 30, 1996, during Rouse’s trial, consular offi-
cials from the United States Embassy in Manila (the “Embas-
sy”) filed letters with the trial court, expressing concerns with
evidentiary issues. The letters were accompanied by a warn-
ing that failure to respond would result in referral to the Phil-
ippine Ministry of Justice. The record does not appear to
contain evidence of either a response from the judge or a
referral by the Embassy.
Embassy officials raised Rouse’s case with local officials,
and the Ambassador himself broached the subject with a Phil-
6108 ROUSE v. UNITED STATES DEP’T OF STATE
ippine legislator. The Ambassador, however, did not think the
matter merited the attention of the Philippine president. Con-
sular officers also visited Rouse at least nineteen times during
his confinement, communicated with him by telephone, and
assisted in providing him with access to medical care.
3
Over the course of his confinement, Rouse executed
numerous Privacy Act waivers permitting the Department of
State (the “Department”) to disclose information about his
case to third parties. On several occasions, the Department
responded to inquiries from private organizations and mem-
bers of Congress without mentioning its doubts as to the pro-
priety of Rouse’s arrest and incarceration or its efforts to
obtain his release. The Department also initially refused to
release information to certain individuals or groups. Rouse
asserts that he had signed Privacy Act waivers covering these
parties and that the failure to disclose the records constituted
willful and intentional misrepresentations on the part of the
Department. The Government maintains that at worst it was
“confused about the status of Mr. Rouse’s waivers.”
4
In “late 1999,” Rouse asked the Department for a copy of
any files which had been kept on him. While it appears the
Department did not immediately provide a copy, it complied
with this request by September 2000. Documents Rouse
alleged to be missing from his file were later made available
to him via a Freedom of Information Act (“FOIA”) request.
5
Rouse filed a petition with the United Nations Human
Rights Committee (“UNHRC”) on June 10, 2002, under the
Optional Protocol to the International Covenant on Civil and
Political Rights. On July 25, 2005, the UNHRC issued its
ROUSE v. UNITED STATES DEP’T OF STATE 6109
views that Rouse had been improperly imprisoned on a num-
ber of evidentiary and procedural grounds.
B
Just short of two years following his return to the United
States, Rouse filed a pro se complaint in the United States
District Court for the District of Hawaii, seeking over nine
million dollars in damages. See 5 U.S.C. § 552a(g)(5) (allow-
ing a Privacy Act action to be filed “in the district in which
the complainant resides”).1 He alleged that the Department
violated the Privacy Act, 5 U.S.C. § 552a, by willfully and
intentionally failing to maintain and to disseminate records
regarding his case with the appropriate level of accuracy, rele-
vance, timeliness, and completeness. As Rouse maintained
that his arrest, indictment, and trial were fraught with proce-
dural and evidentiary defects, he asserted that the Depart-
ment’s actions deprived him of the benefits of diplomatic and
third-party efforts to secure his freedom.2
The district court granted the Department’s motion to dis-
miss, determining that Rouse’s claims “would fail on the mer-
its because of a lack of causation,” the Privacy Act did not
afford Rouse a remedy, and Rouse’s complaint was “proba-
bly” barred by the applicable statute of limitations.3 This
timely appeal followed.
1
Rouse’s only claims are under the Privacy Act. He “specifically dis-
claim[ed] any attempt to assert a claim under the Federal Tort Claims
Act.”
2
Specifically, Rouse alleged that the Department deliberately main-
tained, used, and disseminated inaccurate records which in turn denied
him: 1) “a fair determination to his entitlement to [the Department’s]
exhaustive protective services”; 2) “a fair determination to his right to
have and control the release of information about his case/situation” via
Privacy Act waivers; 3) “ready access to his embassy records”; 4) “a fair
determination to his entitlement to receive regularly scheduled [consular]
visits”; and 5) “his right to U.S. Embassy assistance in knowing what
rights [he] had a just claim to as well as what assistance and aid the U.S.
Embassy should provide him.”
3
Rouse initially named the Embassy and various individuals as defen-
dants. Because the Privacy Act only permits suits against an “agency,” see
6110 ROUSE v. UNITED STATES DEP’T OF STATE
II
[1] The Privacy Act was designed to “protect the privacy
of individuals” through regulation of the “collection, mainte-
nance, use, and dissemination of information” by federal
agencies. 5 U.S.C. § 552a note. It provides agencies with “de-
tailed instructions for managing their records and provides for
various sorts of civil relief to individuals aggrieved by failures
on the Government’s part to comply with the requirements”
of the Act. Doe v. Chao, 540 U.S. 614, 618 (2004).
Broadly speaking, there are two types of Privacy Act
claims: “accuracy” claims and “access” claims. Accuracy
claims arise under two different provisions of the Act. The
first requires an agency 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.” See 5 U.S.C.
§ 552a(e)(5). The second mandates that “prior to disseminat-
ing any record about an individual to any person other than
an agency . . . [it must] make reasonable efforts to assure that
such records are accurate, complete, timely, and relevant for
agency purposes.” Id. § 552a(e)(6). Congress has provided for
civil remedies for violation of these provisions. See id.
§ 552a(g)(1)(C) (creating a cause of action when an agency
“fails to maintain any record concerning any individual with
such accuracy, relevance, timeliness, and completeness as is
necessary to assure fairness in any determination relating to
the qualifications, character, rights, or opportunities of, or
benefits to the individual that may be made on the basis of
such record, and consequently a determination is made which
5 U.S.C. § 552a(g)(1), and does not apply to individual defendants, see
Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1340 (9th Cir.
1987), the district court dismissed the claims against the individual defen-
dants and substituted the Department of State for the Embassy.
ROUSE v. UNITED STATES DEP’T OF STATE 6111
is adverse to the individual”); id. § 552a(g)(1)(D) (creating a
cause of action where an agency “fails to comply with any
other provision of this section . . . in such a way as to have
an adverse effect on an individual”). If a court determines that
an agency has violated these provisions in a manner that was
“intentional or willful, the United States shall be liable to the
individual in an amount equal to the sum of actual damages
sustained by the individual.” Id. § 552a(g)(4).
Access claims, on the other hand, arise under a different
provision, id. § 552a(d)(1) (requiring that agencies provide an
individual “access to his record” “upon request”), and can
likewise be enforced via civil action, id. § 552a(g)(1)(B) (cre-
ating a cause of action when an agency “refuses to comply
with an individual request under subsection (d)(1)”).
Rouse brings both accuracy and access claims. Our discus-
sion, however, is limited to his accuracy claims. Because
Rouse concedes that he received a copy of his full embassy
file, his access claims are moot.4
We review the district court’s dismissal of Rouse’s claims
de novo, see Weber v. Dep’t of Veterans Affairs, 521 F.3d
1061, 1065 (9th Cir. 2008), accepting “all material allegations
of the complaint” as true and construing “all reasonable infer-
4
“[P]articular violations of the [Privacy] Act [are linked] to particular
remedies in a specific and detailed manner.” Cell. Assocs., Inc. v. Nat’l
Insts. of Health, 579 F.2d 1155, 1158 (9th Cir. 1978). With respect to suits
for access violations, the only remedy available is for the court to “enjoin
the agency from withholding the records and order the production to the
complainant of any agency records improperly withheld from him.” 5
U.S.C. § 552a(g)(3)(A); see Thurston v. United States, 810 F.2d 438, 447
(4th Cir.1987). When a party, such as Rouse, has already received a copy
of the requested records, we cannot afford him any further relief. Other
courts have held that dismissal for mootness is appropriate in such circum-
stances, even where the records were not delivered in a timely fashion,
see, e.g., Lovell v. Alderete, 630 F.2d 428, 430-31 (5th Cir. 1980), and we
have so held in the analogous FOIA context, see, e.g., Carter v. Veterans
Admin., 780 F.2d 1479, 1481 (9th Cir. 1986).
6112 ROUSE v. UNITED STATES DEP’T OF STATE
ences” in favor of the nonmoving party, Navarro v. Block,
250 F.3d 729, 732 (9th Cir. 2001).
III
[2] We first consider whether Rouse’s complaint was time-
barred. The Privacy Act requires plaintiffs to bring suit within
“two years from the date on which the cause of action arises.”
5 U.S.C. § 552a(g)(5). Even if his complaint was filed outside
the two-year period, Rouse asserts that the statute should be
equitably tolled to account for his imprisonment in a foreign
country. We address each question in turn, reviewing de novo
“the question of when a cause of action accrues [under the
Privacy Act] and whether [such] a claim is barred by the stat-
ute of limitations.” See Oja v. U.S. Army Corps of Eng’rs, 440
F.3d 1122, 1127 (9th Cir. 2006).
A
[3] Initially, we must determine whether Rouse’s complaint
was filed within two years of the date his cause of action
allegedly arose. We have held that a cause of action arises
under the Privacy Act when the plaintiff “knows or has reason
to know of the alleged violation.” Rose v. United States, 905
F.2d 1257, 1259 (9th Cir. 1990).
[4] Rouse “concedes that he was aware of many of the acts
and omissions underlying the violations of the Privacy Act
during the course of his imprisonment.” The record bears this
out. By 1998, Rouse allegedly “began to realize that the
Embassy personnel were deliberately manipulating the exis-
tence and content of his [Privacy Act waivers].” At the very
latest, Rouse would have been aware of the basis for his most
recent allegation against the Department when he received his
“complete” file pursuant to a FOIA request in early 2002.
Accordingly, when Rouse’s complaint was filed on Septem-
ber 27, 2005, it was filed more than two years after he knew
or had reason to know of the alleged violations.
ROUSE v. UNITED STATES DEP’T OF STATE 6113
B
[5] Before proceeding further, we must decide whether
§ 552a(g)(5) operates as a statute of limitations or as a juris-
dictional bar. If it is the former, the traditional defenses of
“waiver, estoppel, and equitable tolling” apply. United States
v. Locke, 471 U.S. 84, 94 n.10 (1985). If it is the latter, such
defenses are inapplicable, and we lack subject matter jurisdic-
tion over the case entirely. See Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982).
For many years, it was commonplace for courts to deter-
mine that time limits in statutes permitting suits against the
government were jurisdictional in nature. See, e.g., Action on
Smoking & Health v. C.A.B., 724 F.2d 211, 225 (D.C. Cir.
1984). Such statutes were viewed as conditions to waivers of
sovereign immunity and were thus construed narrowly. See
Block v. North Dakota, 461 U.S. 273, 287 (1983). Indeed, at
least one of our sister circuits determined that § 552a(g)(5)
was jurisdictional. See Diliberti v. United States, 817 F.2d
1259, 1262 (7th Cir. 1987). In Irwin v. Department of Veter-
ans Affairs, 498 U.S. 89 (1990), however, the Supreme Court
announced a “general rule” that “the same rebuttable pre-
sumption of equitable tolling applicable to suits against pri-
vate defendants should also apply to suits against the United
States.” Id. at 95-96. The Court reasoned that while waivers
of sovereign immunity had to be “unequivocally expressed,”
once Congress made such waiver, applying “the rule of equi-
table tolling . . . to suits against the Government, in the same
way that it is applicable to private suits, amounts to little, if
any, broadening of the congressional waiver.” Id. at 95. Con-
gress, the Court ruled, is presumed to legislate against the
backdrop of private litigation, a backdrop which includes
equitable tolling. See id.; cf. United States v. Texas, 507 U.S.
529, 534 (1993) (noting a “presumption favoring the retention
of long-established and familiar principles, except when a
6114 ROUSE v. UNITED STATES DEP’T OF STATE
statutory purpose to the contrary is evident” (internal quota-
tion marks and citation omitted)).5
The Supreme Court clarified its position in United States v.
Brockamp, 519 U.S. 347 (1997). Before deciding whether
Irwin’s general presumption in favor of equitable tolling had
been rebutted, the Supreme Court assumed, “for argument’s
sake, that a tax refund suit and a private suit for restitution are
sufficiently similar to warrant” application of the presumption.
Id. at 350 (emphasis added). In other words, for Irwin’s pre-
sumption to apply, the underlying cause of action must be
“sufficiently similar” to a traditional cause of action between
private parties.
1
[6] The D.C. Circuit applied this methodology in Chung v.
U.S. Department of Justice, 333 F.3d 273 (D.C. Cir. 2003), to
hold that § 552a(g)(5) was not categorically jurisdictional. See
id. at 277 (stating that for Irwin to apply, “the type of litiga-
tion at issue must not be so peculiarly governmental that there
is no basis for assuming customary ground rules apply”). To
ensure the presumption the Supreme Court established in
Irwin received its proper weight, however, the court noted
that this inquiry “must be conducted at a fairly high level of
generality.” Id. (“[T]he question we ask, therefore, is not
whether the elements of, and remedies available in, the action
against the Government mimic those of a private claim, but
whether the injury to be redressed is of a type familiar to pri-
vate litigation.”).
5
Despite Irwin, Diliberti does not appear to have been directly over-
ruled. We note that at least two other circuits (one in an unpublished dis-
position) have since ruled that § 552a(g)(5) is jurisdictional. See Harrell
v. Fleming, 285 F.3d 1292, 1293 (10th Cir. 2002); Weber v. Henderson,
33 F. App’x 610, 611 (3d Cir. 2002). Both simply cite Diliberti, and nei-
ther appear to have considered the implications of Irwin.
ROUSE v. UNITED STATES DEP’T OF STATE 6115
[7] We agree with the D.C. Circuit’s analysis in Chung.
Here, Rouse claims that he was harmed by the Department’s
allegedly willful failure to disseminate and to maintain accu-
rate records about the status of his case.6 Taking the allega-
tions in the complaint as true, we must assume that the
Department was willfully misrepresenting information to and
about Rouse. We are satisfied that these claims are suffi-
ciently similar to traditional tort actions such as misrepresen-
tation and false light to warrant the application of Irwin’s
rebuttable presumption. Cf. Restatement (Second) of Torts
§ 525 (1977); id. § 532; id. § 652E.
2
[8] We must next ask the question: “Is there good reason
to believe that Congress did not want the equitable tolling
doctrine to apply?” Brockamp, 519 U.S. at 350. In other
words, has the Irwin presumption been rebutted? The govern-
ment contends that Congress “has already effectively allowed
for equitable tolling” by including a “built in” exception to the
statute of limitations. United States v. Beggerly, 524 U.S. 38,
48 (1998). That exception applies to situations
where an agency has materially and willfully misrep-
resented any information required under this section
to be disclosed to an individual and the information
so misrepresented is material to establishment of the
liability of the agency to the individual under this
section the action may be brought at any time within
two years after discovery by the individual of the
misrepresentation.
5 U.S.C. § 552a(g)(5). While this language does cut against
the presumption, as the D.C. Circuit noted in Chung, it does
not defeat it. See Chung, 333 F.3d at 278-79. The Supreme
6
These are listed in Rouse’s complaint as his First, Second, Fourth, and
Fifth Causes of Action.
6116 ROUSE v. UNITED STATES DEP’T OF STATE
Court has only found the Irwin presumption overcome when
dealing with statutes containing “detail[ed], . . . technical lan-
guage” and “explicit list[s] of exceptions,” Brockamp, 519
U.S. at 352; circumstances where equitable tolling “could
create serious administrative problems,” id.; areas of law
where the running of a defined statute of limitations is of
“special importance,” Beggerly, 524 U.S. at 49; or statutes the
Court previously interpreted as jurisdictional in nature, see
John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750,
755 (2008).
[9] No such circumstances, nor any others that might mili-
tate against tolling, exist in this case. Accordingly, we con-
clude that the Irwin presumption has not been rebutted.
IV
Having been assured of our jurisdiction, we decline to
decide whether equitable tolling is warranted on the facts of
this case. Instead, we proceed to the merits. In order to state
a claim under the accuracy provisions of the Privacy Act, an
individual must show “1) that the government failed to fulfill
its record keeping obligation, 2) which failure proximately
caused the adverse determination, 3) that the agency failed
intentionally or willfully to maintain the records, and 4) that
the plaintiff suffered actual damages.” Rose, 905 F.2d at
1259; Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir. 1986)
(noting that § 552a(g)(1)(C) “requires a causal connection
between the allegedly erroneous agency record and an adverse
determination made against the individual.”);7 see also 5
U.S.C. § 552a(g)(4) (noting that in actions under
§ 552a(g)(1)(C) or (D), damages are only available for inju-
ries incurred “as a result of” alleged violations).
7
Rose and Hewitt explicitly referenced § 552a(g)(1)(C). However, there
is no reason § 552a(g)(1)(D) would require any less of a causal connec-
tion.
ROUSE v. UNITED STATES DEP’T OF STATE 6117
A
Because the district court relied on a causation analysis to
dismiss Rouse’s claims on the merits, we move first to the
second Rose prong. The gravamen of Rouse’s theory of cau-
sation is that the Department willfully and intentionally failed
to keep, to maintain, and to disseminate accurate records
about his case. He contends that if the Department had kept,
maintained, and disseminated accurate records about his case,
the Department (or a third party) would have been able to file
diplomatic or other protests with the Philippine government.
If these protests had been filed, Rouse would have been
released from prison. The resulting prolonged imprisonment
caused Rouse extreme emotional distress and other nonpecu-
niary harms.
[10] We agree with the Department’s counsel that Rouse’s
chain of inferences “stretches any notion of proximate cause
beyond the breaking point.” Regardless of whether or not the
records were accurately maintained and disseminated, it is
pure speculation that the Department would review them and
decide to pursue additional diplomatic protests. It is specula-
tion upon speculation then to assume that if the Department
or third parties decided to protest further, such protest would
have ensured Rouse’s early release. Indeed, such claims are
belied by the record itself, which demonstrates that official
Embassy protests in Rouse’s case were unavailing. Thus, the
district court did not err when it dismissed the case for “lack
of causation.”8
8
Because we are satisfied that Rouse is unable to demonstrate the requi-
site causal link between the asserted violation and his alleged injuries, we
need not decide whether the nonpecuniary emotional harms he alleges
constitute “actual damages” under the Privacy Act. See 5 U.S.C.
§ 552a(g)(4)(A).
6118 ROUSE v. UNITED STATES DEP’T OF STATE
B
Rouse’s error is compounded by his belief he was entitled
to further diplomatic efforts. Such claims are wholly outside
the scope of the Privacy Act. Rouse bases this assumption on
Department regulations and the Foreign Affairs Manual. See,
e.g., 22 C.F.R. § 71.6 (requiring Department officials to “ex-
tend every possible aid and assistance within their power to
distressed American citizens”); 7 Foreign Aff. Manual
§ 426.1(b) (“If the legal and human rights of U.S. citizens and
nationals arrested abroad are to be adequately protected, [the
Department] must be prepared to protest substantiated viola-
tions of those rights [including] impressing on the host gov-
ernment that the U.S. Government . . . will not tolerate a
violation of [its citizens] rights.”).
In the first place, many of Rouse’s claims of misrepresenta-
tion are based on records that include opinions and judgments
as to the status of his case. Such records are not actionable
under the Privacy Act. See Hewitt, 794 F.2d at 1379 (deter-
mining that characterizations of an employee’s performance
on a proficiency report were not appropriate grounds for a Pri-
vacy Act claim because “interpretation of facts is properly
consigned to the professional judgment of the agency offi-
cial”).
[11] More significantly, we have found nothing in these
regulations which indicates that they create a private right of
action, much less one enforceable in court through the Privacy
Act. Rouse must demonstrate that a federal statute vests him
with such a right. See Alexander v. Sandoval, 532 U.S. 275,
291 (2001) (“Language in a regulation may invoke a private
right of action that Congress through statutory text created,
but it may not create a right that Congress has not.”).9 This he
does not do.
9
Even if there were a cause of action available under these regulations,
the Department acted properly. Where formal protest is warranted, the
Foreign Affairs Manual notes that “the level at which the protest is made
and the method are normally left to the post’s discretion.” 7 Foreign Aff.
Manual § 426.3. In this case, the Embassy exercised its discretion and pro-
tested Rouse’s treatment to the trial court and several Philippine officials.
ROUSE v. UNITED STATES DEP’T OF STATE 6119
Accordingly, the district court did not err in holding that
the Privacy Act does not afford a remedy for the harms Rouse
alleges.
V
Finally, Rouse contends that as he was litigating pro se in
the district court, it was error to dismiss his claims without
providing him the opportunity to amend his complaint. Rouse
is correct that “ ‘[d]ismissal of a pro se complaint without
leave to amend is proper only if it is absolutely clear that the
deficiencies of the complaint could not be cured by amend-
ment.’ ” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.
2007) (quoting Schucker v. Rockwood, 846 F.2d 1202,
1203-04 (9th Cir. 1988)).
[12] For the reasons discussed above, any attempt to amend
would be futile in this case. No amendment would be able to
cure either Rouse’s inability to establish causation as a matter
of law or the fact that Department regulations do not provide
him with a cause of action. Accordingly, the district court did
not err in declining to provide Rouse the opportunity to
amend his complaint.
VI
Based on the foregoing, the decision of the district court is
AFFIRMED.