440 F.3d 1122 (9th Cir. 2006), 03-35877, Oja v. United States Army Corps of Engineers

Docket Nº:03-35877.
Citation:440 F.3d 1122
Party Name:Robert OJA, Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS; Robert B. Flowers, Lieutenant General, Defendants-Appellees.
Case Date:March 14, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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440 F.3d 1122 (9th Cir. 2006)

Robert OJA, Plaintiff-Appellant,

v.

UNITED STATES ARMY CORPS OF ENGINEERS; Robert B. Flowers, Lieutenant General, Defendants-Appellees.

No. 03-35877.

United States Court of Appeals, Ninth Circuit.

March 14, 2006

Argued and Submitted March 11, 2005.

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[Copyrighted Material Omitted]

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Marianne Dugan, Facaros & Dugan, Eugene, Oregon, for the appellant.

Karin J. Immergut, U.S. Attorney, and James L. Sutherland, Assistant United States Attorney, Eugene, Oregon, for the appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District of Oregon, Presiding. D.C. No. CV-02-06301-MRH/TMC.

Before: Procter Hug, Jr., Marsha S. Berzon, and Jay S. Bybee, Circuit Judges.

BYBEE, Circuit Judge:

Petitioner Robert Oja sued the United States Army Corps of Engineers ("the USACE") and Robert Flowers (collectively "Defendants") under the Privacy Act of 1974, Pub. L. No. 579, 88 Stat. 1896 (codified as amended at 5 U.S.C. § 552(a)), for disclosing Oja's personal information by posting it on the USACE's public Internet website. The District of Oregon granted summary judgment for Defendants. We affirm, holding that the district court properly applied the Privacy Act's statute of limitations to both of Oja's amended complaints. In the course of answering Oja's claims, we hold that the single publication rule applies to Privacy Act claims relating to Internet posting.

I. FACTS AND PROCEEDINGS1

A. Background

Oja served as Regulatory Chief of the Alaska District of the USACE from 1985 until 1998. During his tenure at the USACE, Oja avers that he "was frequently critical of the USACE, accusing the agency of thwarting his efforts to enforce wetlands violations and bending to pressure from oil companies." Oja made numerous protective disclosures under the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified in scattered sections of 5 U.S.C.), 2 Oja and documented repeated statutory violations by the USACE's Alaska construction projects in investigative reports required under the Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566 (codified in scattered sections of 33 U.S.C.). In 1997, the USACE stripped Oja of his duties' as Regulatory

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Chief. In February 1998, Oja filed a claim for job-related illness. That same month, the USACE acknowledged in writing that Oja's medical records demonstrated that he was disabled for work due to a stress-related illness.

In 1999, Oja and the USACE entered into a settlement agreement regarding his claim for job-related illness ("Settlement Agreement"). The USACE agreed to "convert the basis" for Oja's termination from "excessive absence and failure to follow leave procedures" to "continued absence due to illness." The USACE also agreed to purge the former explanation from its records. Oja agreed to file for retirement, which the USACE subsequently granted, retroactive to March 1998.

In September 2000, The Washington Post published a series of articles critical of the USACE. The series included a discussion of the Alaska District and Oja's tenure as Regulatory Chief and mentioned Oja's earlier complaints that the USACE had thwarted his efforts to enforce wetlands violations.

At some point shortly after the Post articles appeared, the USACE posted a point-by-point response to the articles on its Internet website under "Corps Facts" at http://www.hq.usace. army.mil/cepa/pubs/ Alaska.htm. One of these points reads:

Issue: Mr. Robert Oja, Chief of Regulatory in the Alaska District ...

Removal from Job: Mr. Oja stopped coming to work on October 23, 1997, and failed to provide information about the likelihood of returning to work. Effective September 5, 1998, Mr. Oja was removed from his position for excessive absence due to illness.

The USACE removed the posting from its public Internet website on November 27, 2000. The following month, Oja asserts, he discovered "the very same personal information about me could be accessed by going into the [USACE's] Public Affairs website, clicking on 'news publications,' and then finding a new posting that contained the [same] personal information about me."

In September 2001, Oja filed a Petition for Enforcement with the Merit Systems Protection Board ("MSPB"). He alleged that the USACE had breached the Settlement Agreement by posting employment and medical information about him on its Internet website and by not providing relocation entitlements. He further alleged that these breaches were intentional and that the USACE had continued to abuse him as if the Settlement Agreement had never existed. He stated in his petition that

In September 2000, (more than a year after the settlement terms had taken effect, I learned that the [USACE] posted the following information about me on their national Internet web site .

" Removal from Job. Mr. Oja stopped coming to work on October 23, 1997, and failed to provide information about the likelihood of returning to work. Effective September 5, 1998, Mr. Oja was removed from his position for excessive absence due to illness."

Oja later confirmed that "I first saw the [USACE] Internet posting about me in September 2000." In October 2001, the USACE informed Oja that it had placed his personal information on its Internet website to "defend" the USACE from "media inquiries."

Oja filed his original complaint in the District of Oregon on November 5, 2002, alleging that the USACE had violated the Privacy Act by posting Oja's private information on its public Internet website ("Original Complaint"). He then filed an amended complaint on November 25, 2002 ("First Amended Complaint"). Both complaints stated that "[d]uring the month of

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November 2000, and continuously until at least November 27, 2000, the defendants posted private information about Mr. Oja on the public portions of the USACE's Internet website." On March 10, 2003, Oja filed a Second Amended Complaint. In that complaint, Oja did not repeat his allegations that the USACE violated the Privacy Act by posting private information on its public Internet website from September to November 2000. Rather, he alleged that "[d]uring the month of December 2000" Defendants posted private information about him on "public portions of the USACE's Public Affairs Internet website." Oja noted that this was the same information he "had previously located on a different USACE website, [] but which had disappeared from that website in late November 2000." Oja alleged that the USACE continuously posted this information on the USACE Public Affairs Internet website from December 2000 until January 2001. Defendants filed a motion for summary judgment in response to Oja's First Amended Complaint and a motion to dismiss in response to Oja's Second Amended Complaint.

B. Proceedings

1. First Amended Complaint

Defendants filed for summary judgment against Oja's First Amended Complaint on the basis that Oja had not filed his claim within the Privacy Act's two-year statute of limitations. See 5 U.S.C. § 552a(g)(5) (specifying that an "action to enforce any liability created under this section may be Oja 2663 brought . . . within two years from the date on which the cause of actions arises"). The Defendants submitted Oja's statement before the MSPB that he had discovered the Internet postings in September 2000, and argued that his Original Complaint--filed November 5, 2002--had not been filed within the Privacy Act's statute of limitations; accordingly, Defendants argued that the district court lacked jurisdiction to consider Oja's Original and First Amended Complaints.

Oja opposed the Motion, asserting that the continuously-available Internet posting constituted a perpetual violation of the Privacy Act and that his action was therefore within the statute of limitations. He also argued that the statute of limitations should actually have commenced to run when the USACE informed him in October 2001 of its reason for posting the information because it was only as of that point that he had actual knowledge that the posting was "willful or intentional."

The magistrate judge recommended granting Defendants' summary judgment request. The magistrate judge found that Oja's First Amended Complaint only referenced the posting he discovered in September 2000; the September 2000 posting did not fall within the narrow parameters of the continuing violation doctrine and, accordingly, the statute began to run at the time Oja discovered the posting; and Oja's cause of action accrued when Oja first became aware of the posting rather than when Oja first learned that the posting had been intentionally or willfully published on the USACE public website. After a de novo review, the District Court adopted the magistrate judge's findings and recommendation, and entered judgment for Defendants.

2. Second Amended Complaint

Defendants filed a motion to dismiss Oja's Second Amended Complaint, asserting that it was also filed more than two years after Oja discovered the second posting on the USACE Internet website. Defendants argued that because the Second Amended Complaint concerned a posting distinct from that contemplated in Oja's Original and First Amended Complaints, the Second Amended Complaint did not

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relate back to the First Amended Complaint. See Fed.R.Civ.P. 15(c). Oja opposed the motion, arguing that his Second Amended Complaint averred that he found the same information referenced in his Original and First Amended Complaints on a different USACE Internet website; thus, the conduct and basic facts alleged in the First and Second Amended Complaints were identical, his Second Amended Complaint should relate back to...

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