817 F.2d 1259 (7th Cir. 1987), 85-3086, Diliberti v. United States

Docket Nº:85-3086.
Citation:817 F.2d 1259
Party Name:Angelo M. DILIBERTI, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.
Case Date:April 16, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1259

817 F.2d 1259 (7th Cir. 1987)

Angelo M. DILIBERTI, Plaintiff-Appellant,


UNITED STATES of America, et al., Defendants-Appellees.

No. 85-3086.

United States Court of Appeals, Seventh Circuit

April 16, 1987

Argued Dec. 8, 1986.

Rehearing Denied May 5, 1987.

Page 1260

Gregory R. Sun, Gregory R. Sun & Assoc., Chicago, Ill., for plaintiff-appellant.

Mary S. Rigdon, Asst. U.S. Atty., Civil Div., Anton R. Valukas, U.S. Atty., Chicago, Ill., for defendants-appellees.

Before CUMMINGS and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

The plaintiff brought this action under the Privacy Act of 1974, 5 U.S.C. Sec. 552a, alleging that the defendants compiled and withheld from him certain records that were used by his superiors in evaluating his work performance while he served as a lieutenant colonel in the United States Army Reserve and, upon his retirement from the military in 1979, as a full-time civil service employee. The plaintiff alleged that the private records adversely affected his career by depriving him of deserved promotions and by forcing him to accept early retirement from his civilian employment at the end of 1983 and, as a consequence, lower pension benefits. The amended complaint sought a variety of remedies, including the removal of all tainted records and damages for both economic losses and emotional injury.

Pursuant to Fed.R.Civ.P. 12(b)(1) the district court granted the defendants' motion to dismiss the plaintiff's amended complaint for lack of subject matter jurisdiction because the plaintiff had failed to allege exhaustion of administrative remedies. Before an individual may bring a Privacy Act suit seeking amendment of a record maintained by an agency, he must first have exhausted his administrative remedies for having the improper material removed from the record. 5 U.S.C. Sec. 552a(g)(1). Essentially the plaintiff must request the agency to amend the relevant record, id. Sec. 552a(d)(2), and if the agency refuses to amend the record, he must seek agency review of the refusal, id. Sec. 552a(d)(3). The

Page 1261

agency is required to complete its review and make a final determination within 30 days unless the head of the agency for good cause extends the period. Id. If the reviewing official also refuses to amend the record in accordance with the request, the individual must be notified of his right to seek judicial review of the agency's determination. Id. In dismissing the plaintiff's amended complaint, the district court explained that the plaintiff failed to allege that he had sought agency review of the Army's and the Office of Personnel Management's refusals to amend his records.

The plaintiff has appealed the district court's order dismissing his pleading, claiming that he was not required to exhaust his administrative remedies. While conceding that exhaustion is required prior to filing an action against an agency for its failure to amend a record, the plaintiff relies on Nagel v. U.S. Department of Health, Education & Welfare, 725 F.2d 1438, 1441 n. 2 (D.C.Cir.1984), and Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir.1986), to argue that exhaustion of administrative remedies is not a precondition to bringing an action, like his, seeking damages under Sec. 552a(g)(4). We do not reach the exhaustion issue because the plaintiff's action must be dismissed on an alternative jurisdictional ground. The plaintiff has failed to comply with the two-year statute of limitations set forth in 5 U.S.C. Sec. 552a(g)(5):

An action to enforce any liability created under this section may be brought in the district court of the United States ... 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.

Courts have consistently held that where the government's consent as sovereign to be sued is conditioned upon the filing of suit within a specified period of time, strict compliance with that condition is a jurisdictional prerequisite. See, e.g., McIntyre v. United States, 789 F.2d 1408, 1411 (9th Cir.1986) (action to quiet title against U.S., 28 U.S.C. Sec. 2409a(f)); Clifton v. Heckler, 755 F.2d 1138, 1144-1145 (5th Cir.1985) (action against U.S. for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d)(1)(B)); Charlton...

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