Akutowicz v. U.S.

• Citation: 859 F.2d 1122
• Decision Date: 17 October 1988
• Docket Number: D,No. 1173,1173
• Parties: Edwin J. AKUTOWICZ, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee. ocket 88-6017.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1122

859 F.2d 1122

Edwin J. AKUTOWICZ, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.

No. 1173, Docket 88-6017.

United States Court of Appeals, Second Circuit.

Argued Aug. 16, 1988.

Decided Oct. 17, 1988.

Edwin J. Akutowicz, Montpellier, France, pro se.

Barry K. Stevens, Asst. U.S. Atty., Bridgeport, Conn. (Stanley A. Twardy, Jr., U.S. Atty., D. Conn., New Haven, Conn.), for defendant-appellee.

Before WINTER and MINER, Circuit Judges, BILLINGS, ^* District Judge.

MINER, Circuit Judge:

Plaintiff-appellant Edwin J. Akutowicz, pro se, commenced this action in the United States District Court for the District of Connecticut (Dorsey, J.) against the United States of America ("the government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346, 2671-2680 (1982 & Supp. IV 1986), and the Privacy Act, 5 U.S.C. Sec. 552a (1982). Akutowicz sought damages of $270,000, alleging, inter alia, that the Department of State ("Department"): (1) wrongfully deprived him of his citizenship; (2) fabricated and distorted information in his record, in violation of the Privacy Act; (3) violated the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (1982), by providing him with an incomplete record of his case and by providing it in an untimely manner; and (4) failed to provide him with an adequate hearing, in violation of the due process clause of the fifth amendment.

The district court granted in part the government's motion for summary judgment, holding that Akutowicz's tort claims were barred by section 2680(a) and (h) of the FTCA, and that the constitutional claims were barred under the doctrine of res judicata. Subsequently, the government successfully moved to dismiss Akutowicz's remaining claims under the Privacy Act and the FOIA for lack of subject matter jurisdiction. Judgment was entered accordingly.

Plaintiff appeals from the district court's rulings under the FTCA and the Privacy Act. Because we find that Akutowicz has not satisfied the private analog requirement of the FTCA, we affirm the district court as to the tort claims for the reasons that follow. We also affirm the court's dismissal of the Privacy Act claims, because Akutowicz failed to satisfy the Act's jurisdictional requirements.

BACKGROUND

Edwin J. Akutowicz, a mathematician, was born a United States citizen. From 1960 to 1961, Akutowicz resided in France while he held a position as a visiting professor of mathematics at the University of Montpellier, also in France. After teaching in Pennsylvania and Texas for several years thereafter, he returned to France in 1965 to teach at the Institute of Mathematics of the University of Science and Technology of Languedoc. Plaintiff has resided continuously in France since 1965, although he asserts that, for approximately forty years, he has co-owned and maintained his family home in Windsor, Connecticut.

Akutowicz claims that in order to hold a regular appointment in the French national educational system, he was required under French law to obtain French citizenship. Thus, on May 12, 1970, Akutowicz became a naturalized French citizen. His wife and two children, both of whom were born in France as United States citizens, also were naturalized as French citizens.

In 1974, plaintiff applied for, and received, a French passport, in order to accompany an all-French academic delegation to India and to avoid complications in crossing international borders as a member of the delegation. Apparently, he never made that trip. In June 1977, Akutowicz sought to obtain a United States passport from the United States Consulate General at Marseille. His last U.S. passport, which had been issued to him in 1966 by the United States Embassy at Paris, had expired in 1969.

Alerted by his application for a new passport, the Department of State began an investigation to determine whether, by becoming a French citizen, Akutowicz had relinquished his United States citizenship. After a five year investigation, the Department concluded that Akutowicz had expatriated himself under the provisions of section 349(a)(1) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. Sec. 1481(a)(1) (1982). ¹ Thereafter, on March Shortly after he learned of his "banishment," Akutowicz decided "to pursue his defense against [the Department's] aggression." To do so, he sought from the Department a copy of his record, which the Department is obligated to maintain under the provisions of section 552a(g)(1)(C) of the Privacy Act. In August 1983, after "over fourteen months of prodding" and upon the intervention of Senator Lowell Weicker, Akutowicz asserts that he finally received a "seriously incomplete" copy of his record from the Department.

23, 1982, the Consulate General at Marseille issued a certificate of loss of nationality pursuant to section 358 of the INA, id. Sec. 1501.

In May 1982, prior to the receipt of his record, Akutowicz appealed the revocation of his citizenship to the Department's Board of Appellate Review (the "Board"). In its decision dated October 3, 1984, the Board reversed the Department's determination regarding Akutowicz's intention to relinquish his citizenship, concluding that plaintiff had "performed no act clearly inconsistent with an intent to retain United States citizenship." The Board therefore reinstated his citizenship. Notwithstanding its decision, the Board observed that "the Department and the [consular] posts concerned developed [Akutowicz's] case patiently and carefully, offering him full due process."

In March 1984, Akutowicz commenced an action pro se against the United States in the United States District Court for the District of Connecticut, see Akutowicz v. United States, Civ. No. N-84-262 (D.Conn.1984), where he alleged various claims arising out of the deprivation of his citizenship. In granting the government's motion to dismiss, the court on December 17, 1984 concluded, inter alia, that plaintiff failed "to demonstrate an adequate prior administrative claim" for purposes of the FTCA. Judgment was entered without prejudice to continued administrative challenge.

On March 31, 1986, after filing an administrative claim, Akutowicz instituted this action, again in the District of Connecticut. Seeking $270,000 damages, he alleged, in his FTCA claim, that the Department wrongfully fabricated and distorted information relevant to his case, enabling it negligently to deprive him of his citizenship. He further alleged, inter alia, that the Department: (1) "intentionally falsified and invented" information relevant to his case, in violation of section 552a(g)(1)(C) of the Privacy Act; (2) provided him with a "seriously incomplete" copy of his record in an untimely manner, in violation of section 552 of the FOIA; and (3) violated the fifth amendment's due process clause by not providing him with an adequate hearing.

The parties subsequently filed cross-motions for summary judgment. In its ruling dated September 15, 1987, the district court granted the government's motion for summary judgment, to the extent of dismissing plaintiff's FTCA and constitutional claims. The court concluded that, because the revocation of Akutowicz's citizenship, pursuant to 8 U.S.C. Sec. 1481(a), constituted a discretionary governmental act, Akutowicz's tort claims were barred by section 2680(a) of the FTCA. Plaintiff's allegations that the Department misrepresented facts and fabricated and destroyed evidence in order to reach its decision similarly fell under 28 U.S.C. Sec. 2680(h), which bars claims arising out of, inter alia, "malicious prosecution, abuse of process, libel, slander, misrepresentation, [or] deceit," 28 U.S.C. Sec. 2680(h). The court also noted the absence of any evidence in the record to support the latter claims.

The district court further held that because Akutowicz's constitutional claims previously were considered and dismissed by the court in its 1984 ruling, these claims were barred by the doctrine of res judicata. Finally, the court denied Akutowicz's motion for summary judgment, as material questions of fact still existed with respect to the FOIA and Privacy Act claims.

The government then moved to dismiss "all allegations" of plaintiff's complaint based on the Privacy Act. On December 17, 1987, the district court granted the motion, dismissing Akutowicz's remaining claims, both under the FOIA and the Privacy Act. Recognizing that the venue requirements of the FOIA and the Privacy Act--sections 552(a)(4)(B) and 552a(g)(5), respectively--are identical, the court held that it had no subject matter jurisdiction, because venue was not proper in the District of Connecticut. The court also observed, without deciding the issue, that Akutowicz had asserted his Privacy Act claims beyond the statutory period.

On appeal, Akutowicz challenges the district court's determinations under the FTCA and the Privacy Act. We hold that, because plaintiff has not stated a cause of action cognizable against a private party, he cannot maintain this action against the government under the FTCA. It therefore is unnecessary to decide whether the Department's determination revoking Akutowicz's citizenship falls under any of the exceptions to the FTCA. We also affirm the district court's finding that it did not have subject matter jurisdiction to entertain the Privacy Act claims.

DISCUSSION

A. Federal Tort Claims Act

"[T]he 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 (1981) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)); see Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 (2d Cir.1988). Accordingly, the government's waiver of immunity under the FTCA must be "strictly construed in favor of the...