Jacobs v. National Security Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRANDON MICHAEL JACOBS,
Pro se Plaintiff,
v. Case No. 19-cv-3439 (CRC)
NATIONAL SECURITY AGENCY,
Defendant.
MEMORANDUM OPINION
Brandon Jacobs alleges that the National Security Agency (“NSA”) unlawfully withheld
and failed to amend records containing his personal information. Discerning no basis upon
which relief can be granted, the Court dismisses the case. See 28 U.S.C. § 1915(e)(2)(B)(ii)
(“[T]he court shall dismiss the case at any time if the court determines that [] the action . . . fails
to state a claim on which relief may be granted.”).
A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiff seeks injunctive relief under the
Privacy Act on the grounds that the NSA improperly failed to amend, see 5 U.S.C.
§§ 552a(g)(1)(A), (2)(A), and release, see id. § 552a(g)(1)(B), (3)(A), records containing his
personal information. Plaintiff’s Complaint contains no allegation that he submitted any request
to the NSA for release or amendment of information that was rejected. See Haase v. Sessions,
893 F.2d 370, 373 (D.C. Cir. 1990) (“In both cases a plaintiff, according to the statutory
language, must initially seek an amendment or access from the agency and even seek review
within the agency before coming to court.” (citing 5 U.S.C. §§ 552a(g)(1)(A) & (B); 552a(d)(3)
& (1)); McCready v. Nicholson, 465 F.3d 1, 14 (D.C. Cir. 2006) (“Subsection 552a(g)(1)(A)
provides a civil remedy only where an agency ‘makes a determination under subsection
(d)(3) . . . not to amend an individual’s record,’ and we have accordingly held that an individual
must exhaust administrative remedies before seeking relief under subsection (g)(1)(A).”
(alteration in original) (quoting Dickson v. Office of Pers. Mgmt., 828 F.2d 32, 40 (D.C. Cir.
1987)). The Court thus concludes that the Plaintiff’s lack of amendment and release claims
under the Privacy Act were not properly exhausted. Accordingly, the Court will dismiss them
for failure to state a claim.
Plaintiff also appears to invoke the First Amendment to the United States Constitution
and the District of Columbia Constitution. See Compl. ¶¶ 5, 6, 8-9, 11. But, the Complaint does
not allege a freestanding constitutional claim; it appears to invoke only the “First Amendment
rights that are guaranteed [by] (e)(7).” Id. ¶ 1. Section (e)(7) of the Privacy Act does not create
a cause of action under the First Amendment. It provides that agencies shall “maintain no record
describing how any individual exercises rights guaranteed by the First Amendment . . . unless
pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C.
§ 552a(e)(7). As best the Court can tell, the Complaint contains no factual allegations from
which the Court could conclude that the NSA illegally recorded protected speech. See Atherton
v. D.C. Office of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“[E]ven a pro se complainant
must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of
misconduct.’” (quoting Iqbal, 556 U.S. at 679)).
In any event, the Complaint does not provide a basis for either injunctive or monetary
relief. It is an open question in this Circuit whether “an injunction preventing the maintenance or
commanding the expungement of government records of an individual’s exercise of first
amendment rights in violation of (e)(7) of the Privacy Act is properly brought under (g)(1)(A)
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(the amendment provision), (g)(1)(D) (the catchall cause of action), or . . . under the
Constitution, common law, or the APA.” Haase, 893 F.2d at 375. To the extent that Plaintiff
seeks an injunction compelling the NSA to amend or expunge protected information, Plaintiff’s
failure to exhaust administrative remedies bars those claims. See id. (“Even assuming such an
action can rest (in whole or in part) on (g)(1)(A), a plaintiff cannot circumvent the exhaustion
requirement . . .”).
And, to the extent that Plaintiff seeks damages for an alleged violation of Section (e)(7),
the Complaint contains no allegations from which the Court could conclude that the NSA “acted
in a manner which was intentional or willful.” 5 U.S.C. § 552a(g)(4); see also Haase, 893 F.2d
at 375 (“No . . . damages [] [a]re authorized for an action under (g)(1)(D) if no intentional
conduct [i]s shown.”). The Court thus concludes that Plaintiff has not stated a claim for
injunctive or monetary relief based on the NSA’s alleged illegal recordation of protected speech.
Accordingly, the Court dismisses those claims as well.
For the foregoing reasons, the Court dismisses this case. A separate order will
accompany this memorandum opinion.
CHRISTOPHER R. COOPER
Date: December 24, 2019 United States District Judge
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