Bowyer v. U.S. Dept. of Air Force

• Decision Date: 19 July 1989
• Docket Number: No. 88-1894,88-1894
• Citation: 875 F.2d 632
• Parties: Raymond C. BOWYER, Plaintiff-Appellant, v. The UNITED STATES DEPARTMENT OF AIR FORCE and Grissom Air Force Base, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 632

875 F.2d 632

Raymond C. BOWYER, Plaintiff-Appellant, v. The UNITED STATES DEPARTMENT OF AIR FORCE and Grissom Air Force Base, Defendants-Appellees.

No. 88-1894.

United States Court of Appeals Seventh Circuit.

Argued Jan. 6, 1989.

Decided May 23, 1989.

Rehearing and Rehearing In Banc Denied July 19, 1989.

Mark T. Dykstra, Butler McCanna & Dykstra, Auburn, Ind., for plaintiff-appellant.

Cliford D. Johnson, Asst. U.S. Atty., South Bend, Ind., for defendants-appellees.

Before WOOD, Jr., POSNER, and MANION, Circuit Judges.

MANION, Circuit Judge.

Raymond C. Bowyer brought suit alleging that the United States Air Force (USAF) and Grissom Air Force Base (GAFB) (collectively defendants), had violated the Privacy Act of 1974. 5 U.S.C. Sec. 552a. Bowyer had been a part-time seasonal employee at GAFB. Bowyer essentially complains that his supervisor maintained inaccurate, irrelevant, and incomplete records about him, which resulted in decisions not to rehire him in 1982, 1983, and 1984. This court reversed an earlier grant of summary judgment (on an issue unrelated to the one we address here). Bowyer v. United States Dept. of Air Force, 804 F.2d 428 (1986). After that decision, defendants moved to dismiss Bowyer's suit for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) on the basis of our decision in Diliberti v. United States, 817 F.2d 1259 (1987). The district court granted defendants' motion and dismissed the case. We affirm.

I.

Bowyer was employed at GAFB as a seasonal heavy equipment operator during the winters of 1978-1981. Bowyer's supervisor (except for a short period) was James McClanahan, the Superintendent of Roads and Grounds at GAFB. Bowyer applied for a job in 1982, 1983, and 1984, but was not hired. After his 1982 employment application was rejected, in November of 1982, Bowyer approached Thor Christensen, a permanent roads and grounds employee at GAFB, and asked for a letter of reference. Bowyer explained to Christensen that he was having difficulty getting rehired and mentioned that it may have been because of a previous conflict he had had with McClanahan. Christensen confirmed Bowyer's suspicions, telling Bowyer that he had seen personal memos and files in McClanahan's desk drawer "that may relate to [your] problem...." Bowyer pressed Christensen on whether he had seen a file with Bowyer's name on it and Christensen responded, "Ray, I am sure that there was one in there...."

On January 10, 1983, Bowyer filed a Freedom of Information Act request, seeking, among other things, "all records on file dealing with my work record at Grissom Air Force Base...." On February 14, 1983, Brig. Gen. Robert W. Norris responded to Bowyer's request. Included were six "memos for record," which pertained to Bowyer's employment at GAFB. Bowyer filed this suit some twenty-three months later on January 18, 1985.

Defendants filed a motion to dismiss for lack of subject matter jurisdiction based on Diliberti, supra. Defendants argued that Bowyer knew or had a reason to know that the records in question existed in November 1982 based on his conversation with Christensen. Because Sec. 552a(g)(5)'s two-year statute of limitations is jurisdictional, defendants contended that Bowyer's untimely filing deprived the district court of jurisdiction. The district court agreed, finding that Bowyer knew the records existed in November 1982 but had waited longer than two years after that to file suit.

Up until the court's dismissal Bowyer had been represented by counsel. But acting pro se, Bowyer filed a motion under Fed.R.Civ.P. 59(e), seeking to alter or amend the district court's judgment. (Bowyer is again represented by counsel on appeal.) Bowyer advanced two grounds in support of his motion. The first was just a rehash of his initial argument that the statute of limitations did not begin to run until he had actual knowledge that allegedly erroneous records were being maintained. The second argument alleged that the Merit Systems Protection Board (Merit Board) had used the same allegedly erroneous documents in September 1983 (in deciding that Bowyer's non-selection was not in retaliation for having reported alleged misconduct on the part of his superiors), and that that constituted a separate and new Privacy Act violation, thus making his suit timely.

The district court allowed the parties to supplement their filings several times in connection with Bowyer's Rule 59(e) motion. At the eleventh hour and in response to one of defendants' supplementary filings, Bowyer added a third theory for extending the limitations period. He argued that McClanahan's statement in the spring of 1982 that he kept no files on temporary employees was a "willful misrepresentation," and that the limitations period did not commence until the misrepresentation was actually discovered. This did not happen until February 14, 1983, Bowyer argued, the date he received a response to his FOIA request.

The district court denied Bowyer's motion to alter or amend, and reaffirmed its initial holding that Bowyer had sufficient knowledge by November 1982 that records were being maintained to trigger the statute of limitations at that time. The court also rejected Bowyer's argument that the Merit Board's September 1983 use of the records constituted a separate violation of the Privacy Act. The district court, however, did not address Bowyer's third argument, in which he contended that McClanahan's alleged "willful misrepresentation" in effect tolled the limitations period until Bowyer actually discovered the misrepresentation. ¹ The district court in all likelihood neglected to reach this issue due to the haphazard way in which the argument was presented. (We acknowledge that Bowyer was proceeding pro se and that the district court commended his excellent job; nevertheless the scattershot manner in which this argument was raised cannot escape mention.) In any event, it makes little difference since, as we discuss below, even if there was a willful misrepresentation, Bowyer discovered the misrepresentation when he learned there were documents in November 1982.

II.

Section 552a(g)(5) of the Privacy Act provides:

An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, without regard to the amount in controversy, 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.

In Diliberti, supra, we held this two-year limitations period to be jurisdictional because it is an "integral condition of the sovereign's consent to be sued under the Privacy Act." Id. at 1262. Consequently, the failure to file suit within the time period "deprives the federal courts of subject matter jurisdiction over the action." Id.

Because Sec. 552a(g)(5)'s time limits are jurisdictional, it is Bowyer's burden to establish that they have been met. Kontos v. Dept. of Labor, 826 F.2d 573, 576 (7th Cir.1987). Both sides submitted documentary evidence in the form of affidavits, depositions, and declarations in connection with defendants' motion to dismiss. See Crawford v. United States, 796 F.2d 924, 928-29 (7th Cir.1986). District courts properly may look beyond the complaint's jurisdictional allegations and view whatever evidence has been submitted to determine whether in fact subject matter jurisdiction exists. Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). The facts presented may give rise to a factual controversy, "the resolution of which requires the district court to weigh the conflicting evidence in arriving at the factual predicate upon which to base the legal conclusion that subject matter jurisdiction exists or ... not." Id. We review these findings under the clearly erroneous standard. Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 530 (7th Cir.1985) ("it is the character of the judge's finding as a finding of fact, rather than the character of the decision in which it is embodied, that brings the 'clearly erroneous' standard into play"). A finding is clearly erroneous only if, after reviewing the entire evidence, we are left "with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1970). " 'If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it.' " Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir.1987) (quoting Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511).

Bowyer advances two arguments on appeal as to why his suit was timely. First, he argues that the statute of limitations should not have commenced until the time he discovered (a) that defendants misrepresented the existence of the records (McClanahan's statement in the spring of 1982 that he kept no records on temporaries), and (b) that the records contained erroneous information. Neither condition was met, Bowyer says, until he actually had physical possession of the records in question (this would be February 1983). Second, Bowyer contends that a separate violation of the Privacy Act occurred when the Merit Board reviewed the "memos for record" while investigating a complaint filed by Bowyer.

Section 552a(g)(5) states that, under ordinary circumstances, an action may be brought "within two years from the date on which the cause of action arises." In...