Fendler v. U.S. Bureau of Prisons

• Decision Date: 09 November 1987
• Docket Number: No. 86-2467,86-2467
• Citation: 846 F.2d 550
• Parties: Robert H. FENDLER, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS; Charles A. Turnbo, Warden, F.C.I. Pleasanton, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 550

846 F.2d 550

Robert H. FENDLER, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS; Charles A. Turnbo, Warden F.C.I. Pleasanton, Respondents-Appellees.

No. 86-2467.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 9, 1987. ^*

Decided May 11, 1988.

Robert H. Fendler, Honolulu, Hawaii, for petitioner-appellant.

Andrew M. Wolfe, Asst. U.S. Atty., San Francisco, Cal., for respondents-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SCHROEDER, PREGERSON and BRUNETTI, Circuit Judges.

PREGERSON, Circuit Judge:

Robert Fendler, a paroled federal prisoner, appeals the dismissal of his Privacy Act claim brought under 5 U.S.C. Sec. 552a(e)(5) (1982); ¹ the dismissal of his claim for expungement of inaccurate material from his presentence report; and the denial of his 28 U.S.C. Sec. 2241 (1982) habeas corpus petition. Fendler contends that the defendant, United States Bureau of Prisons, violated section 552a(e)(5) by refusing to correct allegedly inaccurate information in his presentence report and in documents generated internally by the Bureau of Prisons. Fendler also requests equitable expungement of the allegedly inaccurate information in these documents. Finally, Fendler seeks habeas corpus relief on the ground that the United States Parole Commission violated constitutional and statutory mandates in setting his parole date. We affirm.

I BACKGROUND

Robert Fendler was convicted and sentenced to 10 years on charges of mail fraud, transportation of stolen goods, and racketeering. Fendler v. United States Parole Comm'n, 774 F.2d 975 (9th Cir.1985). While he was incarcerated, the Bureau of Prisons created an agency file on Fendler which includes his presentence report. It still maintains this file. The Bureau of Prisons provided a copy of Fendler's file to the Parole Commission for its determination of Fendler's offense severity rating and parole release date. Fendler objected to certain allegedly inaccurate information in the presentence report and in internally-generated Bureau of Prisons documents. ² Fendler prepared a 17-page rebuttal to the presentence report. The rebuttal was before the Parole Commission when it determined his parole date.

On October 16, 1984, Fendler filed his First Amended Petition and Complaint in the district court. On July 21, 1986, the district court dismissed Fendler's Privacy Act claim and his claim for expungement, and also denied his petition for habeas corpus. Fendler timely appeals. In August 1986, after the district court proceedings, Fendler was released on parole.

Fendler raises three issues on appeal: (1) whether the Bureau of Prisons violated the Privacy Act, 5 U.S.C. Sec. 552a(e)(5), (g)(1)(C) (1982), by failing to maintain accurate records pertaining to him; (2) whether Fendler is entitled to have the allegedly false portions of his presentence report expunged; and (3) whether Fendler's 28 U.S.C. Sec. 2241 petition for habeas corpus is moot because Fendler is on parole and does not challenge the validity of the original conviction.

II PRIVACY ACT CLAIM

We review questions of statutory interpretation de novo. Trustees of Amalgamated Ins. Fund v. Geltman Indus., Inc., 784 F.2d 926, 929 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 90, 93 L.Ed.2d 42 (1986).

Fendler contends that the Bureau of Prisons violated the Privacy Act, 5 U.S.C. Sec. 552a(e)(5), by failing to correct allegedly inaccurate information in his presentence report and in internally-generated Bureau of Prisons records. He contends that the Bureau of Prisons sent inaccurate reports to the Parole Commission, and that these reports substantially influenced the Commission to set a parole release date later than warranted by his offense.

Subsection (e)(5) of the Privacy Act ("the Act") requires that federal agencies maintain records used to make determinations about individuals with such accuracy as is reasonably necessary to assure fairness. 5 U.S.C. Sec. 552a(e)(5). The Act provides an express civil remedy for individuals who suffer adverse determinations resulting from violations of this fairness requirement. 5 U.S.C. Sec. 552a(g)(1)(C). However, the Act allows certain agencies, after holding hearings, to promulgate regulations exempting themselves from provisions of the Act. 5 U.S.C. Sec. 552a(j) (1982).

The Bureau of Prisons has promulgated such regulations and exempted itself from several provisions of the Privacy Act. Specifically, 28 C.F.R. Sec. 16.97(a) (1987) exempts Bureau of Prisons records from section 552a(c)(3) and (4), (d), (e)(2) and (3), (e)(4)(H), (e)(8), (f), and (g). Notably, the regulation does not exempt Bureau of Prisons records from subsection (e)(5). Thus the Bureau of Prisons has not expressly exempted itself from the precise provision which Fendler alleges the Bureau of Prisons violated.

The government argues, nonetheless, that it is not liable to Fendler for any possible violations of subsection (e)(5) because regulation 16.97(a) does exempt the Bureau of Prisons from subsection (g) of section 552a. See 28 C.F.R. Sec. 16.97(a). Subsection (g)(1) provides for civil remedies to enforce various provisions of section 552a. Thus, the Bureau of Prisons argues, since it is exempt from the enforcement provision of the Privacy Act, it must also be exempt from the substantive provision itself--in this case subsection (e)(5). We perceive a flaw in the government's attempt to use regulation 16.97(a)'s exemption from subsection (g) to create an implied exemption from subsection (e)(5).

Subsection (g)(1) is divided into three further subsections: (g)(1)(A), (g)(1)(B), and (g)(1)(C). Subsection (g)(1)(A) provides for a civil remedy when any agency "makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection." 5 U.S.C. Sec. 552a(g)(1)(A). Subsection (g)(1)(B) establishes a civil remedy when any agency "refuses to comply with an individual request under subsection (d)(1) of this section." Id. Sec. 552a(g)(1)(B). Subsection (g)(1)(C) specifically covers violations of subsection (e)(5). Subsection (g)(1)(C) provides a private civil action against the offending agency whenever the 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 is adverse to the individual.

Id. Sec. 552a(g)(1)(C).

Clearly each subsection of (g)(1) enforces a separate substantive provision of section 552a. The Bureau of Prisons would have us read its exemption from "subsection (g)" literally, to encompass each of subsections (g)(1)(A), (g)(1)(B), and (g)(1)(C). For the reasons stated above, we cannot give the exemption this reading.

The Privacy Act sets forth certain requirements which agencies must satisfy if they wish to exempt themselves from the provisions of the Act. In order for an agency to exempt itself from the provisions of the Privacy Act, it must follow the procedure set forth in 5 U.S.C. Sec. 552a(j). According to section 552a(j), an agency can exempt certain record systems from section 552a's requirements by promulgating regulations, as the Bureau of Prisons has done. Subsection (j) also mandates, though, that the agency state its reasons for exempting the records when it adopts the regulation. It is this latter requirement which prevents the Bureau of Prisons from relying on regulation 16.97(a) to impliedly exempt itself from subsection (e)(5) in this case.

The Bureau of Prisons has set forth a justification for exempting an agency from subsection (g) in regulation 16.97(b)(9). 28 C.F.R. Sec. 16.97(b)(9) explains that exemption from subsection (g) is justified "because exemption from provisions of subsection (d) will render provisions of this subsection inapplicable." The Bureau of Prisons' reason for exempting itself from subsection (g), then, has nothing to do with enforcement of subsection (e)(5), nor with subsection (g)(1)(C), (e)(5)'s enforcement provision. Rather, the exemption from subsection (g) can only be understood as applying to subsections (g)(1)(A) and (g)(1)(B), the enforcement provisions for subsection (d). In light of the Bureau of Prisons' clearly expressed justification for exemption from subsection (g), we cannot find that the Bureau of Prisons intended any implied exemption from subsection (e)(5).

The legislative history of section 552a(j) supports this construction of exemption regulation 16.97. The legislative history indicates that an agency can only exempt record systems pursuant to 552a(j) after:

determin[ing] that application of the challenge, access and disclosure provisions would "seriously damage or impede the purpose for which the information is maintained." The Committee intends that this public rulemaking process would involve candid discussion of the general type of information that the agency maintains which it feels falls within these definitions and the reasons why access, challenge, or disclosure would "seriously damage" the purpose of the maintenance of the information.

S.Rep. No. 1183, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6916, 6989. Because the Bureau of Prisons did not seek to exempt itself from subsection (e)(5), and because the Bureau of Prisons' stated justification for exemption from subsection (g) bears no relation to subsection (e)(5), the Bureau of Prisons has no basis for now contending that it should be exempt from (e)(5) or its enforcement provision--(g)(1)(C). ³ Thus we conclude that the Bureau of Prisons cannot escape liability by relying on the exemptions provided for in...