Opinion
Civil No. 00-3568 (JBS).
Filed: May 29, 2002
Dennis L. Friedman, Esquire, Philadelphia, PA, Attorney for Plaintiff.
Christopher J. Christie, United States Attorney, By: Louis J. Bizzarri, Assistant U.S. Attorney, Camden, NJ, Attorneys for Defendants.
OPINION
This matter comes before the Court upon motion by defendants the United States Department of the Air Force, and F. Whitten Peters, Secretary of the Department of the Air Force, for dismissal or, in the alternative, for partial summary judgment as to plaintiff's Privacy Act claim. On July 24, 2000, plaintiff Joan Fine filed the underlying complaint against defendants U.S. Department of the Air Force ("Agency") and Peters, alleging that the decisions of the Equal Employment Opportunity Commission ("EEOC") and the Merit Systems Protection Board ("MSPB") regarding her age and gender discrimination claims are unlawful under Title VII, and that, prior to her termination, the Agency conducted an investigation in violation of the Privacy Act.
Defendants filed the instant motion for dismissal or, alternatively, partial summary judgment as to the Privacy Act claim on grounds that it is barred by the two-year statute of limitations contained in the Privacy Act at 5 U.S.C. § 552a(g)(5). Defendants take the position that the cause of action arose under the Privacy Act on June 5, 1998, and that the two-year period in which to file suit expired on June 5, 2000. For the reasons discussed herein, defendants' motion for dismissal or, alternatively, for partial summary judgment as to the Privacy Act claim will be granted.
BACKGROUND
On December 18, 1988, plaintiff was hired by the United States Air Force, 305th Contracting Squadron, McGuire Air Force Base, in New Jersey. Ms. Fine held the position of Supervisory Procurement Analyst and was referred to as Deputy Chief, Contracting Squadron. In 1997, Colonel Richard Brychcy, Commander of the 305th Logistics Group, requested that the Air Force Office of Special Investigation ("AFOSI") conduct an investigation into rumors that plaintiff had borrowed money from her subordinates. (Brychcy, MSPB Testimony, 4/19/99, at 246, Def.'s Br. Ex. B; AFOSI Investigation Rpt., 1/28/98, at 3, Def.'s Br. Ex. C.) The investigation began on September 16, 1997. (AFOSI Investigation Rpt., 1/28/98, at 1, Def.'s Br. Ex. C.)
The investigation revealed that plaintiff violated the Joint Ethics Regulation by accepting gifts from her subordinates, specifically a $5,000 loan from her direct subordinate Ms. Lidija Erazo, and several smaller loans (between $5 and $20) from another subordinate, Master Sergeant Craig A. King. (AFOSI Investigation Rpt., 1/28/98, at 3, Def.'s Br. Ex. C.) On June 5, 1998, plaintiff was served a Notice of Proposal to Remove for accepting loans from her subordinates in violation of the Joint Ethics Regulation and E.O. 12674, referring to the conclusions as contained in the AFOSI investigation report. (Notice of Proposal to Remove, 6/5/98, Def.'s Br. Ex. D.) The Agency subsequently removed plaintiff, effective September 9, 1998. (Pl.'s MSPB Pet., 7/29/99, Def.'s Br. Ex. K.)
After the MSPB hearing took place on March 26 and April 19, 1999, Chief Administrative Judge Lonnie Crawford issued an initial decision sustaining the Agency's removal action and finding no discrimination. (MSPB Initial Decision, 6/3/99, Def.'s Br. Ex. J.) On July 29, 1999, plaintiff filed a petition for review of the MSPB Initial decision. (Pl.'s MSPB Pet., 7/29/99, Def.'s Br. Ex. K.) On February 2, 2000, the MSPB issued a Final Order, denying plaintiff's petition for review. (MSPB Final Order, 2/2/00, Def.'s Br. Ex. L.)
On March 3, 2000, plaintiff filed a petition for review of the Final Order of February 2, 2000, to the Equal Employment Opportunity Commission ("EEOC"). (Pl.'s EEOC Pet., 3/3/00, Def.'s Br. Ex. M.) The EEOC issued a final decision on June 22, 2000, concurring with the MSPB's finding of no discrimination. (EEOC Final Decision, 6/22/00, Compl. Ex. A.)
Plaintiff filed a civil complaint in this Court on July 24, 2000, alleging that the administration decisions regarding her discrimination claims are unlawful, and that the Agency conducted its investigation in violation of the Privacy Act. (Compl. ¶¶ 10-18.) Defendants filed this motion for dismissal, or, alternatively, for partial summary judgment as to the Privacy Act claim on November 29, 2001.
DISCUSSION
I. Motion for Dismissal or for Partial Summary Judgment
Defendants contend that plaintiff's complaint should be dismissed because she did not file within the two-year statute of limitations provided by the Privacy Act, 5 U.S.C. § 552a(g)(5). When reviewing a motion to dismiss on statute of limitations grounds, the court "must determine whether `the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'" Cito v. Bridgewater Township Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989) (quoting Bethel v. Jendeco Construction Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (emphasis in original)).
The Privacy Act was intended to provide certain safeguards for an individual against an invasion of personal privacy by federal agencies, except as otherwise provided by law. Shannon v. Gen. Elec. Co., 812 F. Supp. 308, 314-15 (N.D.N.Y. 1993); see also Privacy Act of 1974, Pub.L. No. 93-579, § 2(b), 1974 U.S.C.C.A.N. ( 88 Stat. 1896) 2177, 2178. The Privacy Act provides that the limitations period is two years from the date on which the cause of action arises:
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.5 U.S.C. § 552a(g)(5) (emphasis added). The Privacy Act's statute of limitations is jurisdictional and begins to run when the plaintiff "`first knew or had reason to know that the . . . records were being maintained.'" Shannon, 812 F. Supp. at 318 (citing Diliberti v. United States, 817 F.2d 1259, 1261-62 (7th Cir. 1987)).
Defendant claims that the cause of action arose on or about June 5, 1998, the date on which plaintiff received the Notice of Proposal to Remove, which was based on the investigation report finding that plaintiff had improperly accepted gifts from subordinates. Plaintiff cites only to the Shannon case, contending that she timely filed her Privacy Act claim because the cognizable wrong from which her cause of action arose was her termination from employment on September 9, 1998. See Pl.'s Br. in Opp. at 1. The court in Shannon adopted the analysis ofBergman v. United States, 751 F.2d 314, 316 (10th Cir. 1984),cert. denied, 474 U.S. 945 (1985), which held that a cause of action sounding in the Privacy Act arises at a time when: 1) an error was made in maintaining the plaintiff's records; 2) the plaintiff was wronged by the error; and 3) the plaintiff either knew or had reason to know of such error. Bergman, 751 F.2d at 316. The plaintiff in Shannon claimed that he was not harmed by the existence of three performance appraisals and one allegedly erroneous letter in his personnel file until the Department of Energy issued its final determination of no discrimination in plaintiff's discrimination complaint. Under Bergman, the court examined each cause of action to ascertain the wrong plaintiff complained of and when the plaintiff knew or should have known of that wrong. It concluded that the wrong being complained of was the placement and maintenance of the letter and appraisals in his file, and that the causes of action accrued when plaintiff received these documents and requested amendments of them, not at the time the DOE issued its final decision on his discrimination complaint. Accordingly, the court dismissed the complaint as time-barred.
Here, plaintiff asserts in her complaint that "[p]rior to Ms. Fine's termination on September 9, 1998, the Agency conducted an investigation in violation of the Privacy Act." Compl. ¶ 17. The wrong plaintiff complains of is the AFOSI investigation report regarding her receipt of loans and gifts from subordinates, of which she first learned on or about June 5, 1998. On that date, plaintiff was served with a Notice of Proposal to Remove based on the AFOSI investigation, which revealed that plaintiff had violated the Joint Ethics Regulation and E.O. 12674. See Def.'s Br. Ex. D. In her opposition papers, plaintiff concedes that she "cannot deny that she had knowledge of the agency (Department of the Air Force) investigation of her by June, 1998, more than 2 years before she filed her lawsuit alleging a Privacy Act violation." Pl.'s Memo. in Response, at 1. The three conditions under Bergman were thus met on June 5, 1998, when plaintiff was wronged by the proposed removal action and knew or had reason to know of an alleged error in maintaining her records. See also Bergman, 751 F.2d at 316 (barring Privacy Act claim because complaint was filed 5 years after receiving letter denying plaintiff's request to amend employment records in file).
Plaintiff further alleges that her cognizable wrong was her termination from federal service on September 9, 1998. To the extent that plaintiff asserts that the termination constitutes a separate wrong giving rise to the Privacy Act violation, where the underlying documents are the same in both cases, plaintiff is merely "alleg[ing] a continuing adverse consequence of allegedly prior unlawful conduct." Bowyer v. U.S. Dep't of the Air Force, 875 F.2d 632, 638 (7th Cir. 1989) (holding that statute of limitations ran from date plaintiff was told of the maintenance of personnel files, not the government's subsequent actions based on those documents which forced him into early retirement),cert. denied, 493 U.S. 1046 (1990). As in Bowyer, "[t]o accept such `an argument . . . would, in practical effect, mean that the two-year statute of limitations would never run.'" Id. (quoting Diliberti, 817 F.2d at 1264 (internal quotations omitted)). Because plaintiff's Privacy Act cause of action was filed on July 24, 2000, over two years after plaintiff knew of the allegedly unlawful investigation report in her file on June 5, 1998, her Privacy Act claim is barred by the statute of limitations.
CONCLUSION
For the reasons discussed above, defendant's motion to dismiss plaintiff's claim arising under the Privacy Act will be granted, and plaintiff's Privacy Act claim will be dismissed for lack of subject matter jurisdiction. The accompanying Order will be entered.ORDER
THIS MATTER having come before the Court upon motion to dismiss or, in the alternative, for partial summary judgment, by defendants United States Department of the Air Force and F. Whitten Peters, Secretary of the Air Force (collectively "Defendants"); and the Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date;IT IS on this ____ day of May, 2002, hereby
ORDERED that defendants' motion to dismiss, or alternatively, for partial summary judgment [Docket Items 11-1 12-1] shall be, and hereby is, GRANTED ; and plaintiff's Privacy Act claim (Count II) shall be, and hereby is, DISMISSED for lack of subject matter jurisdiction.