F. Principles Applicable to All Privacy Act Civil Actions
3. Statute of Limitations
"An action to enforce any liability created under this section may be brought . . . within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented 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. Nothing in this section shall be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975." 5 U.S.C. § 552a(g)(5).
comment --The statute of limitations is jurisdictional in nature and must be strictly construed as it is an "'integral condition of the sovereign's consent to be sued under the Privacy Act.'" Bowyer v. United States Dep't of the Air Force, 875 F.2d 632, 635 (7th Cir. 1989) (quoting Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir. 1987)); accord Williams v. Reno, No. 95-5155, 1996 WL 460093, at *1 (D.C. Cir. Aug. 7, 1996); Akutowicz v. United States, 859 F.2d 1122, 1126 (2d Cir. 1988); Davis v. Gross, No. 83-5223, 1984 U.S. Dist. LEXIS 14279, at **2-3 (6th Cir. May 10, 1984); Mangino v. Department of the Army, 818 F. Supp. 1432, 1437 (D. Kan. 1993), aff'd, 17 F.3d 1437 (10th Cir. 1994) (unpublished table decision). Consequently, the plaintiff's failure to file suit within the specified time period "deprives the federal courts of subject matter jurisdiction over the action." Diliberti, 817 F.2d at 1262; accord Griffin v. United States Parole Comm'n, 192 F.3d 1081, 1082 (D.C. Cir. 1999); Bowyer, 875 F.2d at 635.
In a subsection (g)(1)(A) amendment action, the limitations period begins when the agency denies the plaintiff's request to amend. See Englerius v. VA, 837 F.2d 895, 897-98 (9th Cir. 1988) (holding that the statute of limitations "commences at the time that a person knows or has reason to know that the request has been denied," rather than as of the date of the request letter); see also Blazy v. Tenet, 979 F. Supp. 10, 18 (D.D.C. 1997) (although ultimately finding plaintiff's amendment claim moot due to remedial action taken by CIA, citing Englerius and finding that claim for amendment of sexual harassment allegations in personnel file did not begin to run until employee discovered that FBI, where plaintiff had applied for employment, never received corrective letter from CIA, prior to which time plaintiff did not and could not have known of CIA's failure to amend), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998). But see Wills v. OPM, No. 93-2079, slip op. at 2-3 (4th Cir. Jan. 28, 1994) (alternative holding) (per curiam) (holding that a cause of action triggers the statute of limitations when the plaintiff knows or should have known of the alleged violation, which in this case, was when the plaintiff sent his first letter requesting an amendment).
In determining what constitutes the agency's denial, it has been held that the agency's initial denial should govern, rather than the date of the agency's administrative appeal determination. See Quarry v. Department of Justice, 3 Gov't Disclosure Serv. (P-H) ¶ 82,407, at 83,020-21 (D.D.C. Feb. 2, 1982); see also Singer v. OPM, No. 83-1095, slip op. at 2 (D.N.J. Mar. 8, 1984) (rejecting claim that limitations period began on date plaintiff's appeal was dismissed as time-barred under agency regulation); cf. Shannon v. General Elec. Co., 812 F. Supp. 308, 320 & n.10 (N.D.N.Y. 1993) (finding that cause of action for damages claim arose when plaintiff's amendment request was partially denied and noting that "no caselaw can be found to support a finding that the pendency of the appeal has any affect upon the running of the statute of limitations").
In cases "[w]here the agency has not issued an express denial of the request, the question of when a person learns of the denial requires a factual inquiry and cannot ordinarily be decided on a motion to dismiss." Englerius, 837 F.2d at 897; see also Jarrell v. United States Postal Serv., 753 F.2d 1088, 1092 (D.C. Cir. 1985) (holding that issue of material fact existed and therefore summary judgment was inappropriate where agency contended that cause of action arose when it issued final denial of expungement request but requester argued that due to agency's excision of certain parts of documents, he was unaware of information until later point in time).
The two-year statute of limitations set forth in subsection (g)(5) applies to the access provision of the Privacy Act as well. 5 U.S.C. § 552a(g)(5). However, because an individual's Privacy Act access request should be processed under the FOIA as well--see H.R. Rep. No. 98-726, pt. 2, at 16-17 (1984), reprinted in 1984 U.S.C.C.A.N. 3741, 3790-91 (regarding amendment of Privacy Act in 1984 to include subsection (t)(2) and stating: "Agencies that had made it a practice to treat a request made under either [the Privacy Act or the FOIA] as if the request had been made under both laws should continue to do so."); FOIA Update, Vol. VII, No. 1, at 6--and the FOIA is subject to the general six-year statute of limitations, see Spannaus v. Department of Justice, 824 F.2d 52, 55-56 (D.C. Cir. 1987) (applying 28 U.S.C. § 2401(a) to FOIA actions), the Privacy Act's "two-year bar" may be of little, if any, consequence. The ramifications of these arguably conflicting provisions have not been explored.
Indeed, only three decisions have addressed the Privacy Act's statute of limitations in the access context. See Biondo v. Department of the Navy, 928 F. Supp. 626, 632, 634-35 (D.S.C. 1995) (summarily stating that 1987 request "cannot serve as a basis for relief for a suit brought in 1992 because the Privacy Act has a two-year statute of limitations"; similar statements made as to undocumented requests for information in mid-80s and in 1976-77), aff'd, 86 F.3d 1148 (4th Cir. 1996) (unpublished table decision); Burkins v. United States, 865 F. Supp. 1480, 1496 (D. Colo. 1994) (cause of action "should not be time-barred" because it would have accrued when plaintiff knew his request for access had been denied); Mittleman v. United States Treasury, 773 F. Supp. 442, 448, 450-51 n.7 (D.D.C. 1991) (where claims are barred by statute of limitations, plaintiff "cannot attempt to resurrect" them by making subsequent request more than three years after she had first received information and almost six months after complaint had been filed), related subsequent case, Mittleman v. OPM, No. 92-158, slip op. at 1 n.1 (D.D.C. Jan. 18, 1995), summary affirmance granted, 76 F.3d 1240, 1242 (D.C. Cir. 1996).
The statute of limitations for a damages cause of action begins when the plaintiff knew or should have known of the Privacy Act violation. See Williams v. Reno, No. 95-5155, 1996 WL 460093, at *1 (D.C. Cir. Aug. 7, 1996); Tijerina v. Walters, 821 F.2d 789, 797 (D.C. Cir. 1987); see also Bergman v. United States, 751 F.2d 314, 316-17 (10th Cir. 1984) (holding that limitations period for damages action under subsection (g)(1)(C) commences at time three conditions are met: (1) an error was made in maintaining plaintiff's records; (2) plaintiff was wronged by such error; and (3) plaintiff either knew or had reason to know of such error); cf. Bowyer v. United States Dep't of the Air Force, 875 F.2d 632, 636 (7th Cir. 1989) (applying stricter standard and holding that the limitations period begins to run when "plaintiff first knew or had reason to know that the private records were being maintained"); Diliberti v. United States, 817 F.2d 1259, 1262-64 (7th Cir. 1987) (same).
Some courts have held that once the plaintiff knows or has reason to know of a record's existence, even if based upon hearsay or rumors, the plaintiff has a "duty to inquire" into the matter--i.e., "two years from that time to investigate whether sufficient factual and legal bases existed for bringing suit." See Bowyer, 875 F.2d at 637; see also Diliberti, 817 F.2d at 1263-64 (stating that "the hearsay and rumors which the plaintiff described in his affidavit were enough to put him on notice" and "impose a duty to inquire into the veracity of those rumors"); Munson, No. 96-CV-70920-DT, slip op. at 2-3 (E.D. Mich. July 2, 1996); Strang v. Indahl, No. 93-97, slip op. at 2-4 (M.D. Ga. Apr. 13, 1995) ("The statute does not await confirmation or actual access to the records; hearsay and rumor are sufficient to begin running the statute of limitations."); Mangino, 818 F. Supp. at 1438 (quoting Diliberti); Rickard v. United States Postal Serv., No. 87-1212, slip op. at 5 (C.D. Ill. Feb. 16, 1990) (recognizing "duty to inquire" established by Diliberti, and stating that "[e]ven unsubstantiated hearsay and rumor suffice to give a plaintiff notice of alleged inaccuracies in a record").
Generally, the plaintiff knows or has reason to know of records in violation of the Privacy Act when the plaintiff suspects there is a violation rather than when the plaintiff actually possesses those records or when the government creates those records. See Dilberti, 817 F.2d at 1262 (stating that the "relevant fact is not when the plaintiff first had physical possession of the particular records, but rather when he first knew of the existence of the records"). If the plaintiff has constructive notice of the possible violation, the statute of limitations is triggered. See id. at 1262-63; see also Bowyer, 875 F. 2d at 632, 636 (stating that when agency employee confirmed that agency maintained private records on plaintiff relating to previous conflict with his supervisor, he had sufficient notice of possibly erroneous records). In the context of a damages action for wrongful disclosure, the D.C. Circuit rejected the government's argument that the limitations period commenced when the contested disclosure occurred, and observed that such an unauthorized disclosure "is unlikely to come to the subject's attention until it affects him adversely, if then." Tijerina, 821 F.2d at 797.
Other courts have similarly found that the statute of limitations began to run where the evidence or circumstances indicated that the plaintiff knew of the violation or had been affected by it. See Armstrong v. United States Bureau of Prisons, 976 F. Supp. 17, 21 (D.D.C. 1997) (following Tijerina and finding plaintiff's claim barred by statute of limitations where plaintiff had written letter over two and one-half years earlier indicating that her prison file was lacking favorable information), summary affirmance granted sub nom. Armstrong v. Federal Bureau of Prisons, No. 97-5208, 1998 WL 65543 (D.C. Cir. Jan. 30. 1998); Nwangoro v. Department of the Army, 952 F. Supp. 394, 397-98 (N.D. Tex. 1996) ("[T]he limitation period commences not when the plaintiff first obtains possession of the particular records at issue, but rather when he first knew of their existence."); Brown v. VA, No. 94-1119, 1996 WL 263636, at **1-2 (D.D.C. May 15, 1996) (Privacy Act claim barred by statute of limitations because plaintiff "knew or should have known that the Privacy Act may have been violated" when he submitted federal tort claim to VA concerning same matter "over two and a half years" before suit filed); Gordon v. Department of Justice, Fed. Bureau of Prisons, No. 94-2636, 1995 WL 472360, at *2 (D.D.C. Aug. 3, 1995) (statute of limitations ran from time of plaintiff's receipt of letter from sentencing judge rejecting information contained in presentencing report, at which point plaintiff "knew or . . . should have known what became inaccuracies in his presentencing report"); Rice v. Hawk, No. 94-1519, slip op. at 2-3 & n.1 (D.D.C. Dec. 30, 1994) (plaintiff knew of contents of presentence report at time he filed "Objection to Presentence Investigation Report," at which time statute of limitations began to run), summary affirmance granted, No. 95-5027, 1995 WL 551148 (D.C. Cir. Aug. 2, 1995); Szymanski, 870 F. Supp. at 378-79 (citing Bergman and Tijerina and stating that "[b]ecause plaintiff was given the opportunity to review the documents he now maintains contain incorrect information and waived that opportunity, the Court finds that he should have known about any errors at the time of this waiver" but that, additionally, plaintiff had complained about same information in his appeal to Parole Commission more than two years previously); Malewich v. United States Postal Serv., No. 91-4871, slip op. at 21-22 (D.N.J. Apr. 8, 1993) (statute began to run when plaintiff was aware that file was being used in investigation of plaintiff and when he was notified of proposed termination of employment), aff'd, 27 F.3d 557 (3d Cir. 1994) (unpublished table decision); Mangino, 818 F. Supp. at 1437-38 (applying Bergman, Bowyer, and Diliberti, and finding that cause of action accrued on date of letter in which plaintiff indicated knowledge of records being used by agency as basis for revoking his security clearance, rather than upon his receipt of records); Ertell v. Department of the Army, 626 F. Supp. 903, 908 (C.D. Ill. 1986) (limitations period commenced when plaintiff "knew" that there "had been negative evaluations in his file which may explain why he is not being selected," rather than upon actual discovery of such records); cf. Doe v. NSA, No. 97-2650, 1998 WL 743665, at **1-3 (4th Cir. Oct. 23, 1998) (per curiam) (citing Rose and Diliberti, and holding that appellant's wrongful disclosure claim was time-barred because in accordance with principles of agency law, Privacy Act action accrued from time her attorney received her records).
In contrast to the constructive notice theory adopted by many courts, some courts have suggested that the limitations period for a subsection (g)(1)(C) damages action would commence when a plaintiff actually receives his record--i.e., when he actually discovers the inaccuracy. See Akutowicz v. United States, 859 F.2d 1122, 1126 (2d Cir. 1988) (holding that the limitations period "began to run, at the very latest, when the citizen received a copy of his records from the State Department"); see also Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990) (subsection (g)(1)(C) action accrues when reasonable person "knows or has reason to know of the alleged violation" and that period commenced when plaintiff received copy of her file); Lepkowski v. United States Dep't of the Treasury, 804 F.2d 1310, 1322-23 (D.C. Cir. 1986) (Robinson, J., concurring) (subsection (g)(1)(C) action "accrued no later than the date upon which [plaintiff] received IRS' letter . . . apprising him of destruction of the photographs and associated workpapers"); Harry v. United States Postal Serv., 867 F. Supp. 1199, 1205 (M.D. Pa. 1994) (although exact date when plaintiff should have known about alleged improper file maintenance was unclear, date of actual discovery was "sterling clear"--when plaintiff physically reviewed his files), aff'd sub nom. Harry v. Postal Serv. (United States), Marvin T. Runyon, 60 F.3d 815 (3d Cir. 1995) (unpublished table decision); Shannon, 812 F. Supp. at 319-20 (causes of action arose when plaintiff learned of wrongs allegedly committed against him which was when he received documents that were allegedly inaccurate or wrongfully maintained); Fiorella v. HEW, 2 Gov't Disclosure Serv. (P-H) ¶ 81,363, at 81,944 (W.D. Wash. Mar. 9, 1981); cf. Steele v. Cochran, No. 95-35373, 1996 WL 285651, at *1 (9th Cir. May 29, 1996) (citing Rose and holding that Privacy Act claim filed in 1994 was time-barred because plaintiff wrote letter to agency questioning validity of information disclosed to State Bar in 1991 and was formally informed by State Bar that he was denied admission in 1991).
One district court decision has also considered the statute of limitations in connection with a Privacy Act claim under subsection (e)(3) concerning the collection of information from individuals. Darby v. Jensen, No. 94-S-569, 1995 U.S. Dist. LEXIS 7007, at **7-8 (D. Colo. May 15, 1995). In that case, the court determined that the claim was time-barred, as more than two years had passed since the date upon which the plaintiff had received the request for information. Id.
Additionally, it has been held that "[a] Privacy Act claim is not tolled by continuing violations." Davis v. United States Dep't of Justice, 204 F.3d 723, 726 (7th Cir. 2000); see also Bergman, 751 F.2d at 316-17 (ruling that limitations period commenced when agency first notified plaintiff in writing that it would not reconsider his discharge or correct his job classification records and rejecting argument "that a new cause of action arose upon each and every subsequent adverse determination based on erroneous records"); Bowyer, 875 F.2d at 638 (citing Bergman and Diliberti and rejecting argument that continuing violation doctrine should toll statute of limitations); Diliberti, 817 F.2d at 1264 (citing Bergman for same proposition); Malewich, No. 91-4871, slip op. at 23-25 (D.N.J. Apr. 8, 1993) (same); Shannon, 812 F. Supp. at 319-20 (plaintiff "cannot revive a potential cause of action simply because the violation continued to occur; he can allege subsequent violations only if there are subsequent events that occurred in violation of the Privacy Act"); cf. Baker v. United States, 943 F. Supp. 270, 273 (W.D.N.Y. 1996) (citing Shannon with approval). But cf. Burkins v. United States, 865 F. Supp. 1480, 1496 (D. Colo. 1994) (citing Bergman and viewing plaintiff's harm as "continuing transaction").
Moreover, a plaintiff's voluntary pursuit of administrative procedures should not toll the running of the statute of limitations, because no administrative exhaustion requirement exists before a damages action can be brought. See Uhl v. Swanstrom, 876 F. Supp. 1545, 1560-61 (N.D. Iowa 1995), aff'd on other grounds, 79 F.3d 751 (8th Cir. 1996).
However, the limitations period is equitably tolled if the plaintiff belatedly discovers a material and willful misrepresentation by the agency. The statute's own terms provide that if the plaintiff remains unaware of his cause of action because of the agency's material and willful misrepresentations of information required by the statute to be disclosed to him and the information is material to establishment of the liability of the agency to the individual, then the limitations period runs from the date upon which the plaintiff discovers the misrepresentation. 5 U.S.C. § 552a(g)(5); see also Lacey v. United States, 74 F. Supp. 2d 13, 15-16 (D.D.C. 1999) (concluding that defendants made material and willful misrepresentations to plaintiffs by telling them that they lacked evidence and should wait for agency to finish its own investigation of claim before bringing suit, which tolled statute of limitations until agency "confirmed that there was substance to plaintiffs' claim of violations"); Burkins, 865 F. Supp. at 1496 ("Accepting plaintiff's claims of agency misrepresentation as true, the statute may have been tolled."); Pope v. Bond, 641 F. Supp. 489, 500 (D.D.C. 1986) (holding that the FAA's actions constituted willful and material representation because of their repeated denials of plaintiff's request for access, which "prevents the statute of limitations from running until the misrepresentation is discovered"); cf. Marin v. United States Dep't of Defense, No. 95-2175, 1998 WL 779101, at *1 (D.D.C. Oct. 23, 1998) (denying defendants' motion to dismiss on ground that claim was time-barred and accepting plaintiff's claim regarding timing of agency misrepresentation), summary affirmance granted, No. 99-5102, 1999 WL 1006404 (D.C. Cir. Oct. 8, 1999); Munson, No. 96-CV-70920-DT, slip op. at 4-5 (E.D. Mich. July 2, 1996) (statement that agency could find no record of disclosure of report to state police but that it would check further "does not provide any evidence of a willful and material misrepresentation"); Strang v. Indahl, No. 93-97, slip op. at 2-4 (M.D. Ga. Apr. 13, 1995) (agency's denial of allegations in plaintiff's complaint did not equate as material misrepresentation; by voluntarily dismissing suit on belief that reliance on circumstantial evidence was insufficient, plaintiff "elected to forego the very lawsuit which would have . . . substantiated her suspicions").
Note that the Seventh Circuit has stated that this special relief provision is necessarily incorporated into tests, such as the one set forth in Bergman, which focus on when a plaintiff first knew or had reason to know of an error in maintaining his records. Diliberti, 817 F.2d at 1262 n.1; see also Malewich, No. 91-4871, slip op. at 25-27 (D.N.J. Apr. 8, 1993) (following Diliberti and precluding "the plaintiff from utilizing the discovery rule as a basis for extending the permissible filing date"). The government argued to the Court of Appeals for the District of Columbia Circuit in Tijerina v. Walters that subsection (g)(5) "makes sense only if Congress intended the normal statutory period to commence at the time of the alleged violation, regardless of whether the potential plaintiff is or should be aware of the agency's action." See 821 F.2d at 797-98. The D.C. Circuit, however, rejected that argument and stated that in order to ensure that the government cannot escape liability by purposefully misrepresenting information, "the Act allows the period to commence upon actual discovery of the misrepresentation, whereas . . . for other actions under the Act, the period begins when the plaintiff knew or should have known of the violation . . . thus in no way affect[ing] the special treatment Congress provided for the particularly egregious cases of government misconduct singled out in the Act's statute of limitations." Id. at 798.
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