                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
MARK L. NEFF,                        )
                                     )
      Plaintiff,                     )
                                     )
      v.                             ) Civil Action No. 07-1672 (RCL)
                                     )
BUREAU OF PRISONS et al.,            )
                                     )
      Defendants.                    )
____________________________________)

                                   MEMORANDUM OPINION

       Plaintiff Mark L. Neff, filed this pro se complaint, alleging that the Bureau of Prisons

(“BOP”) and several of its employees violated his rights under the Privacy Act, 5 U.S.C. § 552a.

He seeks declaratory relief and money damages. The defendants have filed a motion to dismiss

for lack of jurisdiction and failure to state a claim upon which relief may be granted. Plaintiff

has filed an opposition to the motion. Because this Court does not have jurisdiction over the

claims asserted, the motion to dismiss will be granted.1

                                            Background

       The plaintiff expressly filed this complaint “under 5 U.S.C. § 552a(g)(1)(A).” Compl.

at 2. The complaint alleges that the defendant Bureau of Prisons and several individual

employees “willfully declined” plaintiff’s repeated requests to correct an error in his pre-sentence

report (“PSR”). Id.. at 2-3.2 Specifically, the complaint alleges that the U.S. Sentencing


       1
           Plaintiff’s pending motion for appointed counsel will also be denied.
       2
          Although it is immaterial to the result, the complaint does not make clear whether the
plaintiff meant to bring this Privacy Act suit against the individuals in their official or individual
capacities, or both. None of the individual defendants were served in their individual capacities,
and this Court does not have personal jurisdiction over them.
                                                 -2-

Guidelines 1990 Manual applies to the plaintiff, but that § 4B1.4 of the 1991 Manual was

incorrectly used in his PSR. Defendants dispute the accuracy of plaintiff’s allegations, but argue

that in any case plaintiff has no right of action with respect to either the BOP or the individual

defendants.3 See Defs.’ Mot. to Dismiss at 3-4.

                                             Discussion

       The United States of America and its executive agencies, including the Justice

Department’s BOP, enjoy immunity from suit unless the United States has expressly consented to

suit. United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States

may not be sued without its consent and that the existence of consent is a prerequisite for

jurisdiction.”). By enacting 5 U.S.C. § 552a(g) of the Privacy Act, the United States consented to

be sued in situations where that provision applies, and the plaintiff has brought this suit for

declaratory relief and damages under that provision. Compl. at 2. The Privacy Act, however,

does not afford an individual a right to sue any defendant with respect to information contained

in the BOP’s Inmate Central Record System. This is so because a federal regulation, which has

the force of law, expressly exempts the BOP’s Inmate Central Record System from 5 U.S.C.

§ 552a(g), the Privacy Act’s provision for suit. See 28 C.F.R. § 16.97(a)(4) (exempting the

Inmate Central Record System from the provisions of 5 U.S.C. § 552a(g), among other

provisions of the Privacy Act). The PSR that plaintiff contends is inaccurate is maintained as

part of the BOP’s Inmate Central Record System. See Decl. of Brandi Ray, Jan. 16, 2008, Att. 1

(“Program Statement 5800.11, Inmate Central File, Privacy Folder and Mini-Files” referring to


       3
          While it is legally irrelevant to this decision, the Court’s examination of § 4B1.4 in the
1990 Manual and the 1991 Manual show no differences between the two versions. Moreover,
each of these Manuals states that § 4B1.4 took effect on November 1, 1990.
                                                 -3-

the maintenance of the PSR); see also, e.g., Brown v. BOP, 498 F. Supp. 2d 298, 302 (“An

inmate’s Central File is part of the BOP’s central records system, and contains a complete copy

of the PSR, which is received from the sentencing court and maintained in the ordinary course of

business in the central record system.”) (internal quotation marks, alterations, and citation

omitted). Thus, plaintiff’s arguments notwithstanding, see Pl.’s Opp’n at 1, 3, the Privacy Act

does not afford him a right of action either against the BOP, as a federal agency, or against any

individuals with respect to the these records. See Ramirez v. Dep’t of Justice, - - F. Supp. 2d - - ,

2009 WL 222973, *3 (D.D.C. Jan. 30, 2009) (explaining that the Privacy Act authorizes suits

against agencies of the federal government only, and not against any officers or employees of an

agency.)

                                            Conclusion

       Because the plaintiff does not have a right of action under the Privacy Act with respect to

records maintained by the BOP in its Inmate Central Record System, this Court has no subject

matter jurisdiction over this suit, and the case will be dismissed. A separate final order

accompanies this memorandum opinion.



                                                                /s/
                                                       ROYCE C. LAMBERTH
Date: March 5, 2009                                    Chief Judge
