Opinion
Civil Action No. 03-3006 Section "N".
October 15, 2004
ORDER AND REASONS
Plaintiff has asserted claims against the United States under the Privacy Act, 5 U.S.C. § 552a. Before the Court is the Motion to Dismiss for Lack of Subject Matter Jurisdiction and Improper Service of Process that was filed by Defendant (Rec. Doc. No. 5). For the following reasons, the motion is GRANTED.
BACKGROUND
On October 3, 1992, Plaintiff, an employee of the Waterman Steamship Corporation ("Waterman"), served as third mate aboard Waterman's oceangoing cargo vessel, SS Stonewall Jackson, which was berthed at the Poland Avenue/Pauline Street Wharf (hereinafter "the wharf") in New Orleans, Louisiana. On that day, as the vessel was undocking, it collided with the wharf. Holding Plaintiff responsible for the allision, Waterman terminated his employment on October 4, 1992. Following the accident, the United States Coast Guard conducted an investigation and determined that Plaintiff had given incorrect information to the bridge, which resulted in the allision.On September 13, 1994, Plaintiff initiated an administrative Federal Tort Claims Act claim for money damages ("FTCA claim") against the Department of Transportation and the Coast Guard. On October 5, 1994, Angela Marra, Attorney Advisor for the Coast Guard, wrote to Plaintiff's counsel acknowledging receipt of the September 13, 1994 letter. On the same day, Ms. Marra also wrote a letter to the Eighth Coast Guard District requesting a fact-finding investigation into Plaintiff's claim, and instructing that the findings should be reported in a "letter incident report." Responding to Ms. Marra's directive, the Commander of the Eighth Coast Guard District, on October 13, 1994, directed the Commanding Officer of the Coast Guard Marine Safety Office New Orleans ("MSO New Orleans"), to conduct the fact-finding investigation, in contemplation of litigation with Plaintiff, into the circumstances surrounding the completion of the Coast Guard's marine casualty investigation of the October 3, 1992 allision.
On December 2, 1994, a document referred to as "Letter Incident Report; Investigation into Administrative Claim, File No. 94-32-LC-0530, USCG Investigation of the Allision of the SS Stonewall Jackson with the Poland Avenue Wharf on 3 Oct 1992" (hereinafter "Letter Incident Report"), which reported the findings of the investigation and bears the signature of Captain T.E. Thompson, United States Coast Guard, Commanding Officer, was forwarded from MSO New Orleans to the Commander of the Eighth Coast Guard District. Plaintiff obtained a copy of the Letter Incident Report sometime between December 2, 1994, and November 27, 1996.
See Defendant's Motion to Dismiss, Exhibit 9.
Id., Exhibit 10 (referencing a letter from T.E. Thompson). The Court is not certain how Plaintiff obtained this document. The letter attached as Exhibit 10 to Defendant's motion to dismiss suggests that Congressmen Livingston and Tauzin provided it to him.
On or about February 17, 2003, Plaintiff transmitted a request to amend the Letter Incident Report to the Eighth Coast Guard District Commander. The Commander, by letter dated March 5, 2003, advised Plaintiff that he was not the correction authority for the Letter Incident Report, and forwarded the request to the Commandant of the United States Coast Guard in Washington, D.C. Because the Coast Guard had not taken further action on his request for amendment as of October 24, 2003, Plaintiff filed this lawsuit.
Id., Exhibit 1.
Id., Exhibit 18.
CONTENTIONS OF THE PARTIES
In his complaint, Plaintiff prays for the following: (1) an order from this Court directing the Coast Guard to amend certain documents relating to Plaintiff, as requested by him, (2) an order requiring the Coast Guard to maintain records relating to Plaintiff in a fair, impartial, and adequate manner with respect to him; (3) compensatory damages in the amount of $25,000; and (4) costs. Having considered Plaintiff's complaint in the context of the additional information and explanation provided by the parties' briefs, the Court views Plaintiff's complaint as alleging two Privacy Act claims against Defendant. First, Plaintiff claims that Defendant has failed to maintain records relating to him, specifically, the Letter Incident Report, in a fair, accurate, impartial, and adequate manner. Second, he protests Defendant's failure to amend the Letter Incident Report in accordance with his request, and asks the Court to order Defendant to do so.
Plaintiff's complaint initially appears to suggest that he sought amendment and correction of various documents maintained by Defendant — "personnel records, shipping articles, Records of an Investigation, correspondence, and records of disciplinary actions" — on August 5, 1999, February 17, 2003, March 5, 2003, and March 13, 2003. See Complaint at ¶¶ IV-V. Paragraph VI of the Complaint, however, states that "a copy of the request is attached hereto as Exhibit `A'" (emphasis added). The document identified as Exhibit "A" was not attached to the complaint that Plaintiff filed into the Court's record for this matter. It is attached, however, as Exhibit 1 to Defendant's Motion to Dismiss, and is a letter from Plaintiff, dated February 17, 2003, which refers to, and seeks correction of, only the Letter Incident Report. No other requests for amendment, or documents maintained by Defendant, have been provided to and/or specifically identified for the Court, including any requests purportedly made on "August 5, 1999, . . ., March 5, 2003, and March 13, 2003." Accordingly, based on the record before it, the Court views the complaint filed by Plaintiff to seek relief only with regard to the Letter Incident Report.
Referencing Rules 4, 5, and 12 of the Federal Rules of Civil Procedure, Defendant asserts several grounds for dismissal of Plaintiffs claims. Defendant first argues that Plaintiff did not effect proper service, in accordance with Rule 4(i)(1)(C), because he did not serve the Coast Guard.
Defendant next contends that Plaintiff's amendment claim is subject to dismissal because he has failed to exhaust statutory administrative remedies. Specifically, Defendant contends that, prior to filing a lawsuit, Plaintiff was required to submit a request for amendment to the agency and, if the request was denied, to seek administrative review of the denial. Then, pursuant to § 552a(d)(3) and § 552a(g)(1)(A) of the Privacy Act, if the initial refusal was upheld by the reviewing official, or if that person failed to undertake that review, Plaintiff could seek judicial relief. Defendant urges that Plaintiff has not satisfied his administrative remedies because, at the time he filed suit, the Coast Guard had not yet acted on Plaintiff's request for amendment. According to Defendant, Plaintiff, at that time, should have sought assistance from the reviewing administrative official in obtaining a response to his request, rather then seeking judicial relief.
Defendant's third argument is that Plaintiff's amendment claim likewise is subject to dismissal under the Privacy Act, because the Letter Incident Report was prepared "in contemplation of litigation and to assist attorneys, acting on behalf of Chief Counsel, representing the interests of the United States . . .," at the direction of Attorney Advisor Marra. See § 552a(d)(5) (exempting "information compiled in reasonable anticipation of a civil action or proceeding)."
Lastly, Defendant asserts that Plaintiff's maintenance claim is time-barred under the two-year statute of limitations prescribed by § 552a(g)(5). Defendant urges that this time period began when Plaintiff knew or should have known of the alleged violation. According to Defendant, that time was no later than August 5, 1999, as evidenced by correspondence cited by Plaintiff in his complaint. Although a copy of the August 5, 1999 letter was not provided to the Court by either party, Defendant states that the letter references the Letter Incident Report and disputes its contents. Defendant additionally references correspondence from Plaintiff in November 1996, April 1997, and March 1998, in which he denies the accuracy of certain statements contained in the Letter Incident Report. Using any of those dates, Defendant asserts, Plaintiff's October 24, 2003 filing of his maintenance claim came too late.
See Defendant's Motion to Dismiss, Exhibits 10-12.
Responding to Defendant's arguments, Plaintiff contends that he had no obligation, pursuant to Rule 4(i)(1)(C), to serve the Coast Guard with process in this case, because his claims do not attack the validity of an order of an officer or agency of the United States not made a party. Thus, according to Plaintiff, proper service was effected.
Similarly, with regard to his alleged failure to exhaust available administrative remedies, Plaintiff contends that judicial consideration of his amendment claim is appropriate, pursuant to § 552a(g), because the Coast Guard has never acted upon his February 17, 2003 request. Thus, Plaintiff avers, he was not obligated to bring an administrative appeal, pursuant to § 552a(d)(3), because there was no order, action, or decision from which to appeal.
Plaintiff filed his Memorandum in Opposition to Motion to Dismiss on February 23, 2004. The Court assumes that the parties would have advised it if the Coast Guard had either formally denied or granted his request since that time.
Plaintiff offers no response to Defendant's third argument that, because the Letter Incident Report was compiled in reasonable anticipation of a civil action or proceeding, the amendment claim is precluded. With the possible exception of his argument that his cause of action arose when the Coast Guard received his request, Plaintiff also does not address Defendant's fourth contention that his maintenance claim is time-barred.
LAW AND ANALYSIS
Finding that Defendant's motion is meritorious with respect to both of Plaintiff's claims on other grounds, the Court, for purposes of this motion, will assume that service of process was valid. I. Maintenance Claim
The Court notes that Defendant sends mixed messages on this point. It avers that Plaintiff has attacked an order of the Coast Guard, for purposes of Rule 4(i), while also contending that the Coast Guard has not yet responded to Plaintiff's administrative request for amendment.
Defendant asserts that Plaintiff's maintenance claim is time-barred. The Privacy Act provides, in pertinent part, that "an action to enforce any liability created under this section may be brought . . . within two years from the date on which the cause of action arises. . . ." 5 U.S.C. § 552a(g)(5). Various circuits have interpreted the provision "from the date on which the cause of action arises" to mean "that, in a normal Privacy Act claim, the cause of action does not arise and the statute of limitation does not begin to run until the plaintiff knows or should know of the alleged violation." Farrero v. National Aeronautics and Space Administration, 180 F. Supp. 2d 92, 95 (D.D.C. 2001) (quoting Tijerina v. Walters, 821 F.2d 789, 798 (D.C. Cir. 1987)); see also Bowyer v. United States Department of the Air Force, 875 F.2d 632, 636 (7th Cir. 1989), cert. denied, 493 U.S. 1046, 110 S. Ct. 846 (1990); Englerius v. Veterans Admin., 837 F.2d 895, 897-98 (9th Cir. 1988); Bergman v. United States, 751 F.2d 314, 316 (10th Cir. 1984), cert. denied, 474 U.S. 945, 106 S. Ct. 310 (1985). Therefore, the requisite inquiry with regard to Plaintiff's maintenance claim is when he first knew or had reason to know of the maintenance of the allegedly erroneous records. See Diliberti v. United States, 817 F.2d 1259, 1262-64 (7th Cir. 1987).
The Court does not construe Defendant's motion and supporting memorandum to raise a similar argument with respect to Plaintiff's amendment claim. See Supplemental Memorandum of Law in Support of United States of America's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Improper Service of Process at pp. 16-17 (referring to Plaintiff's maintenance claim). In any event, it has been held that the two-year statute of limitations for an amendment claim does not commence until the person requesting amendment knows or has reason to know that the request has been denied. See Englerius v. Veterans Admin., 837 F.2d 895, 897 (9th Cir. 1988); Bassiouni v. FBI, 2003 WL 22227189, *2 (N.D. Ill. Sept. 26, 2003); Blazy v. Tenet, 979 F. Supp. 10, 18 (D.D.C. 1997), aff'd., 1998 WL 315583 (D.C. Cir. May 12, 1998). Here, Defendant maintains that the Coast Guard has not yet acted upon Plaintiff's request. See Affidavit of Donald Taylor, Exhibit 22, Defendant's Motion to Dismiss. The Court further notes that Plaintiff filed suit within two years of submitting his request for amendment.
In this case, there are numerous letters drafted by Plaintiff that show his knowledge of the alleged maintenance violation far earlier than two years before the date this action was commenced. On November 27, 1996, Plaintiff wrote a letter to the U.S. Coast Guard, stating:
The packet I received from Congressman Tauzin and Livingston contained a letter from a T.E. Thompson. The attachments contain allegations by the Coast Guard that I was combative and verbally abusive toward Coast Guard investigator, Raymond Kennedy. I categorically deny that I ever abused any person from the Coast Guard, verbally or otherwise. The Coast Guard also alleges that I tried to direct Kennedy's investigation and became uncooperative when he refused to allow it. I categorically deny these charges also.
My version of what happened (the true version) is as follows. . . .
See Defendant's Motion to Dismiss, Exhibit 10 at p. 2.
Furthermore, in a letter dated March 27, 1998, Plaintiff wrote to Congressman Livingston:
In my own case, the Coast Guard assembled a report (called a "letter incident report" in this instance) which was very similar to the "situation reports" described in the Camou investigation (See copy of the December 2, 1994 T.E. Thompson "letter incident report" — enclosed). On pages 2 and 4 of my November 27, 1996, FOIA request to the Coast Guard . . . I denied the Coast Guard allegations in the T.E. Thompson "letter incident report" which claim that, among other things, I verbally abused, intimidated, and interfered with the Coast Guard investigator.
Id., Exhibit 12 at p. 2.
Given this correspondence, it is clear that Plaintiff knew of the Letter Incident Report, and believed it to contain untruths, at least as early as November 27, 1996. Plaintiff did not file suit, however, until October 24, 2003, which is far more than two years after his discovery of the existence of the Letter Incident Report and its contents. Thus, Plaintiff's maintenance claim must be dismissed as untimely.
II. Amendment Claim
With regard to Plaintiff's exhaustion of his administrative remedies, the Privacy Act, § 552a(d)(3), provides for an administrative appeal of an agency's refusal, pursuant to § 552a(d)(2), to amend an individual's record. Section 552a(g)(1)(A) of the Privacy Act allows an individual to seek judicial relief when the agency makes a second determination, pursuant to § 552a(d)(3), to refuse the individual's amendment request, or fails to conduct the appellate review provided for in that subsection. Here, though Plaintiff's February 2003 request for amendment was forwarded to the appropriate agency official in March 2003, he had not received the initial agency refusal, pursuant to § 552a(d)(2), that would trigger the review process established by § 552a(d)(3), and referred to in § 552a(g)(1)(A), approximately seven months later. Thus, Plaintiff decided to seek judicial relief.
The statute provides, in pertinent part:
(d) Access to records. — Each agency that maintains a system of records shall —
(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence;
(2) permit the individual to request amendment of a record pertaining to him and —
(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and(B) promptly, either —
(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;
(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official's determination under subsection (g)(1)(A) of this section;
(4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and
(5) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.
Regarding judicial relief, the statute states, in pertinent part:
(g)(1) Civil remedies. — Whenever any agency
(A) makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection;
(B) refuses to comply with an individual request under subsection (d)(1) of this section;
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.
Defendant contends that Plaintiff's failure to seek administrative review of the agency's failure to render an initial decision on his request for amendment means that he has not exhausted his administrative remedies and, thus, is not entitled to seek judicial relief. In connection with this argument, the Court notes that § 552a(g)(1)(D) allows an individual to seeks judicial relief whenever an agency "fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual." See 5 U.S.C. § 552a(g)(1)(D).
Assuming that this provision would allow an individual to seek judicial relief when he believes that an agency has not acted "promptly" on a pending amendment request, as required by § 552a(d)(2), the Court is not convinced that it should be so applied here. Although the Court agrees that a wait of approximately seven months for an initial agency response to an amendment request hardly is desirable, neither Plaintiff's complaint nor his opposition brief demonstrates that any follow-up efforts were made by Plaintiff regarding the February 17, 2003 request, prior to suit being filed. For this reason, even if § 552a(g)(1)(D) would allow judicial departure from the two-level administrative process established for amendment requests, the Court declines to consider interrupting that process in this instance.
Neither party has offered any analysis of this provision in its brief.
In any event, the Court finds that another provision of the Privacy Act requires dismissal of Plaintiff's amendment claim. Specifically, § 552a(d)(5) states that "nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding." See 5 U.S.C. § 552a(d)(5). Defendant argues that this provision applies to the Letter Incident Report. Significantly, Plaintiff has offered no response to Defendant's request for dismissal on this ground.
As previously detailed, the materials submitted by Defendant reflect that the Letter Incident Report was prepared at the instruction of Attorney Advisor Angela Marra, and in response to her receipt of Plaintiff's FTCA claim. Those instructions, reflected in Ms. Marra's October 5, 1994 letter, included a directive that the report contain the following language: "This investigation is being conducted in contemplation of litigation and to assist attorneys, acting on behalf of the Chief Counsel, representing interests of the United States in this matter." The Letter Incident Report, which followed, includes that exact language.
Id., Exhibit 5.
Id., Exhibit 9.
To the extent that § 552a(d)(5) can be waived or is otherwise inapplicable, Plaintiff has not so argued. Indeed, as previously stated, Plaintiff has offered no opposition to this portion of Defendant's motion. Nor has he alleged sufficient facts to justify a determination that the prohibition found in this provision has been waived, if waiver is possible. Accordingly, given the submissions made by the parties relative to this issue, the Court finds that the Privacy Act, § 552a(d)(5), bars the amendment sought by Plaintiff.
The Court notes that the district court in McCready v. Prinicipi, 297 F. Supp. 178, 190 (D.D.C. 2003), concluded that, because of the mandatory language of the statute, the prohibition had not been waived.
Although § 552a(d)(5) explicitly references access, not amendment, "the ability to amend a document presupposes access to it." Wentz v. Dept. of Justice, 772 F.2d 335, 338 (7th Cir. 1985), cert. denied, 475 U.S. 1086, 106 S. Ct. 1470 (1986); cf. Baker v. Dept. of the Navy, 814 F.2d 1381, 1384-85 (9th Cir. 1987), cert. denied, 484 U.S. 963, 108 S. Ct. 450 (1987) (the scope of accessibility and the scope of amendment under the Privacy Act are coextensive). In addition, requests for disclosure and amendment under the Privacy Act are both found in a subsection entitled "Access to records."