Spannaus v. U.S. Dept. of Justice

• Decision Date: 21 July 1987
• Docket Number: No. 86-5611,86-5611
• Parties: Edward SPANNAUS, Appellant, v. U.S. DEPARTMENT OF JUSTICE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 52

824 F.2d 52

262 U.S.App.D.C. 325

Edward SPANNAUS, Appellant, v. U.S. DEPARTMENT OF JUSTICE.

No. 86-5611.

United States Court of Appeals District of Columbia Circuit.

Argued April 27, 1987.

Decided July 21, 1987.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-02401).

James H. Lesar, Washington, D.C., for appellant.

Philip A. Kesaris, Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Pattie A. Goldman and Alan B. Morrison, Washington, D.C., were on the brief for amicus curiae, Public Citizen, urging reversal of the District Court decision.

Before MIKVA and WILLIAMS, Circuit Judges, and WEIGEL, ^* Senior District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Edward Spannaus filed this Freedom of Information Act ("FOIA") suit, 5 U.S.C. Sec. 552(a)(4)(B) (1982), to compel the Federal Bureau of Investigation to disclose certain material he requested in two separate letters nearly eight years earlier. The District Court dismissed his suit as untimely under the six-year limitations period of 28 U.S.C. Sec. 2401(a) (1982). Spannaus v. Department of Justice, 643 F.Supp. 698 (D.D.C.1986). We affirm.

I. INTRODUCTION

A. The FOIA Requests

Appellant filed two FOIA requests in 1977 with the New York Field Office of the FBI ("New York"), one dated September 20 and the other September 21.

The September 20 request. The September 20 letter requested records pertaining to Gregory F. Rose, an alleged FBI informant. By letter dated October 5, 1977, New York acknowledged receipt of appellant's request. New York advised him that it would process his request to the extent possible, but was forwarding it to FBI Headquarters, where most of the investigative activity concerning Rose was "reported." FBI Headquarters acknowledged and denied appellant's request in full on November 22, 1977, citing the nondisclosure provisions of the Privacy Act of 1974, 5 U.S.C. Sec. 552a(b) (1982 & Supp. III 1985).

On December 23, 1977, appellant filed an administrative appeal. The Justice Department's Office of Privacy and Information Appeals ("OPIA") affirmed the denial on other grounds on February 17, 1978, informing appellant of his right to judicial review.

The September 21 request. Appellant's September 21 request was for records pertaining to 11 named organizations associated with Lyndon H. LaRouche, including the National Caucus of Labor Committees ("NCLC"). By letter dated October 5, 1977 (the same letter that acknowledged the September 20 request), New York advised appellant that it was also forwarding this request to FBI Headquarters. On October 19, 1977, New York partially denied appellant's request, a decision that appellant administratively appealed on October 28, 1977. Almost 15 months later, on January 19, 1979, the OPIA released several documents that New York withheld, but otherwise affirmed New York's partial denial.

In the meantime, FBI Headquarters was conducting its own search on appellant's September 21 request. On January 30, 1979, and again on June 14, 1979, FBI Headquarters released certain records, but advised appellant that it was withholding others. Appellant once again appealed administratively, this time by letter dated June 29, 1979. Six weeks later, on August 15, 1979, the OPIA affirmed the FBI Headquarters' partial denial.

B. This Litigation

On July 26, 1985, seven years and ten months after appellant filed his two September 1977 requests, appellant filed suit in the United States District Court for the District of Columbia to compel FBI to produce the material he had sought in both FOIA requests. ¹ The District Court dismissed the suit as time barred under 28 U.S.C. Sec. 2401(a)'s six-year statute of limitations. Spannaus v. Department of Justice, 643 F.Supp. 698 (D.D.C.1986).

Appellant contends, as he did below, that Sec. 2401(a) does not apply to FOIA suits. In the alternative, he argues that Sec. 2401(a) would not bar his suit to compel compliance with his September 21 request because the limitations period does not begin to run or is tolled until final administrative disposition of the request.

II. APPLICABILITY OF Sec. 2401(a) TO FOIA

28 U.S.C. Sec. 2401(a) provides, in relevant part:

every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.

The law of this circuit is clear: the words "every civil action" mean what they say. While a negative-pregnant dictum in a decade-old case weakly suggested a possible exception for "exclusively" equitable claims, see Saffron v. Department of the Navy, 561 F.2d 938, 944 (D.C.Cir.1977) (where "remediation does not lie exclusively within the domain of equity, the availability of legal relief ... summons the statute of limitations into play as to the whole") (emphasis added), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978), this court's subsequent opinions clarify beyond dispute that Sec. 2401(a) applies to all civil actions whether legal, equitable or mixed. See, e.g., Calhoun v. Lehman, 725 F.2d 115, 116, 117 (D.C.Cir.1983); Walters v. Secretary of Defense, 725 F.2d 107, 111-14 (D.C.Cir.1983), reh'g denied, 737 F.2d 1038 (D.C.Cir.1984) (en banc) (per curiam); Impro Products, Inc. v. Block, 722 F.2d 845, 849-50 & n.8 (D.C.Cir.1983), cert. denied, 469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984); Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 844 & n.6 (D.C.Cir.1982); White v. Civil Service Commission, 589 F.2d 713, 715 (D.C.Cir.1978) (per curiam), cert. denied, 444 U.S. 830, 100 S.Ct. 58, 62 L.Ed.2d 39 (1979); Oppenheim v. Campbell, 571 F.2d 660, 662 (D.C.Cir.1978). We have recognized an exception only for a narrow class of "actions--most notably habeas corpus--[that] have always been regarded as outside the scope of the statute of limitations." Walters, 725 F.2d at 113 (citation omitted). Appellant suggests that this long line of circuit authority is "at variance with [pre-Saffron ] Supreme Court precedent and should be disregarded," Brief for Appellant at 19, but until action by the Supreme Court or an en banc panel of this court supervenes, we must adhere to the law of the circuit.

Appellant next suggests a couple of policy reasons to engraft into Sec. 2401(a)'s categorical language a special FOIA exception. First, he argues that it would be absurd to impute to Congress the intention to apply a statute of limitations to a cause of action that a party can resuscitate at will simply by resubmitting a FOIA request. Second, he argues that application of the statute of limitations would encourage litigation and discourage resort to permissive administrative appeals, thereby "contraven[ing] the spirit, thrust and purpose of the Act." Brief for Appellant at 16.

Unlike an ordinary statute of limitations, Sec. 2401(a) is a jurisdictional condition attached to the government's waiver of sovereign immunity, and as such must be strictly construed. See United States v. Mottaz, 476 U.S. 834, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). Where clear language restricts our jurisdiction, we may not overturn it merely by invoking spirits and thrusts.

Appellant's policy arguments are, at any rate, unpersuasive. Applying a statute of limitations to FOIA claims leaves agencies free after a reasonable period to dispose of denied FOIA requests that have never been disputed in court. The alternative which would compel agencies to retain their files on such requests indefinitely, imposes significant burdens but offers a prospect of only rarely contributing to the sum of human happiness. ²

Nor does application of the statute of limitations encourage litigation or discourage resort to permissive administrative appeals. As we discuss below, FOIA permits requesters to file suit shortly after they file their requests or administratively appeal their denial. But that does not mean that they will immediately scramble to the courthouse to avoid running afoul of the six-year limitations period. Six years is a long time, ample time within which to pursue an administrative appeal to completion or, in instances of agency delay, to invoke the aid of the court.

In short, we see no reason to inject an exception for FOIA claims into Sec. 2401(a)'s reference to "every civil action."

III. FIRST ACCRUAL OF THE CAUSE OF ACTION

Appellant apparently concedes that if Sec. 2401(a) applies to FOIA actions, as we have held it does, his claim with respect to the September 20 request is time barred. He contends, however, that the claims with respect to his September 21 request are not barred because the OPIA did not dispose of his administrative appeal until August 15, 1979. Thus, he argues, the filing of the suit on July 26, 1985 fell (just barely) within the limitations period.

As a preliminary matter, neither appellant nor the government seems to distinguish, for purposes of this argument, between those documents responsive to appellant's September 21 request that New York withheld and those that FBI Headquarters withheld. As to the former, the OPIA disposed of appellant's appeal on January 19, 1979. Thus, even giving appellant the benefit of his argument, his cause of action was, as to those documents, filed over six months late.

Appellant's argument also fails to distinguish between the two theories that it comprises. The first theory, nonaccrual, is that the cause of action did not "first accrue"--and the statute of limitations did not begin to run--until August 15, 1979, when the administrative appeal ended. The second theory, tolling, is that the statute of limitations was tolled, presumably from the date of appellant's request (appellant is unclear) until...