Diliberti v. U.S.

• Decision Date: 05 May 1987
• Docket Number: No. 85-3086,85-3086
• Parties: , 55 USLW 2592 Angelo M. DILIBERTI, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1259

817 F.2d 1259

90 A.L.R.Fed. 689, 55 USLW 2592

Angelo M. DILIBERTI, Plaintiff-Appellant, v. UNITED STATES of America, et al., Defendants-Appellees.

No. 85-3086.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 8, 1986.

Decided April 16, 1987.

Rehearing Denied May 5, 1987.

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 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 v. United States, 743 F.2d 557, 558-559 (7th Cir.1984) (suit under Federal Tort Claims Act, 28 U.S.C. Sec. 2401(b)); Sims v. Heckler, 725 F.2d 1143, 1145 (7th Cir.1984) (suit against U.S. under Title VII); Walters v. Secretary of Defense, 725 F.2d 107, 112 n. 12 (D.C.Cir.1983) (28 U.S.C. Sec. 2401(a)); Anderberg v. U.S., 718 F.2d 976, 977 (10th Cir.1983) (28 U.S.C. Sec. 2401(a)); Monark Boat Co. v. NLRB, 708 F.2d 1322, 1326-1327 (8th Cir.1983) (action against U.S. for attorney's fees under the Equal Access to Justice Act, 5 U.S.C. Sec. 504(a)(2)); Garrett v. United States, 640 F.2d 24, 26 (6th Cir.1981) (28 U.S.C. Sec. 2401(b)); Knapp v. United States, 636 F.2d 279, 282 (10th Cir.1980) (28 U.S.C. Sec. 2409a(f)); 14 Wright, Miller & Cooper, Federal Practice and Procedure Sec. 3654 (1985). This characterization of the statute of limitations as jurisdictional in cases against the federal government arises out of the doctrine of sovereign immunity. As the Supreme Court has repeatedly held, "the United States, as sovereign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 61 S.Ct. 767. In Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1819, 75 L.Ed.2d 240, the Court specifically addressed statutes of limitations: "When waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity." See also Simon v. United States, 244 F.2d 703, 705 (5th Cir.1957) (statute containing time limit for filing suit against U.S. "is not a statute of limitations but a statute granting for a limited time the right of action afforded"). Conditions attached to the sovereign's consent to be sued must be strictly construed. Block, 461 U.S. at 287, 103 S.Ct. at 1819; Lehman, 453 U.S. at 160-161, 101 S.Ct. at 2701; United States v. Kubrick, 444 U.S. 111, 117-118, 100 S.Ct. 352, 356-357, 62 L.Ed.2d 259.

No federal court has expressly addressed whether the two-year statute of limitations contained in the Privacy Act, 5 U.S.C. Sec. 552a(g)(5), is a jurisdictional prerequisite to bringing suit. The statutory time limitation, however, is unquestionably an integral condition of the sovereign's consent to be sued under the Privacy Act. Accordingly, we hold that a plaintiff's failure to file suit within the time period specified in Sec. 552a(g)(5) deprives the federal courts of subject matter jurisdiction over the action.

Although the district court dismissed the plaintiff's amended complaint solely on the exhaustion issue, the defendants raised the statute of limitations as an alternative jurisdictional ground in their motion to dismiss, and the issue was fully briefed by all of the parties. The defendants have again pressed the statute of limitations on appeal as an alternative ground for affirming the district court's order, although they have admittedly given the argument rather short shrift in their brief. See, e.g., Martinez v. United Automobile, Aerospace & Agricultural Implement Workers, 772 F.2d 348, 353 (7th Cir.1985) (court of appeals can affirm on any ground--even one not passed on by the district judge--that the record fairly supports and the appellee has not waived); Liberles v. County of Cook, 709 F.2d 1122, 1130 (7th Cir.1983); Gimix, Inc. v. JS & A Group, Inc., 699 F.2d 901, 904 (7th Cir.1983). Furthermore, because the issue is one of jurisdiction, we of course have the power and duty to reach it on our own. See, e.g., Hiley v. United States, 807 F.2d 623, 626 (7th Cir.1986); Christianson v. Colt Industries Operating Corp., 798 F.2d 1051, 1055-1056 (7th Cir.1986). Because the factual record developed in the district court supports the defendants' limitations argument on appeal, the plaintiff's action is barred by Sec. 552a(g)(5).

In Bergman v. United States, 751 F.2d 314, 316 (10th Cir.1984), certiorari denied, --- U.S. ----, 106 S.Ct. 310, 88 L.Ed.2d 287, the court held that a cause of action arises under the Privacy Act at the time:

(1) an error was made in maintaining the plaintiff's records;

(2) the plaintiff was wronged by such error; and

(3) the plaintiff either knew or had reason to know of such error. ¹

The plaintiff in this case filed his original complaint on February 1, 1984. The amended complaint alleges that the private records about which the plaintiff complains were created and maintained as early as 1977 (First Amended Complaint p 8) ² and that these records adversely affected his work efficiency and evaluation reports from 1977 to 1982 (First Amended Complaint p 15). The critical issue for determining whether the plaintiff's action is barred by Sec. 552a(g)(5) is the time at which the plaintiff first knew or had reason to know that the private records were being maintained.

The amended complaint alleges that the plaintiff did not gain physical access to his file until the Spring of 1982 and that the contents had been withheld from him on numerous previous occasions when he had requested to review his records. (First Amended Complaint p 7)....