FindLaw | Find a Lawyer. Find Answers.

FILED

United States Court of Appeals

Tenth Circuit

APR 10 2002

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILSON TONY HARRELL,

Plaintiff - Appellant,

v. No. 01-6134

L.E. FLEMING, Warden; ELAINE

TERENZI, Chief Probation Officer;

KATHLEEN HAWKS, Director, Bureau

of Prisons; JANET RENO; U.S.

PAROLE COMMISSION, Chairman,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 99-CV-1619-T)

Submitted on Appellant's brief:

Wilson Tony Harrell, Pro Se.

Before LUCERO, PORFILIO, and ANDERSON, Circuit Judges.

LUCERO, Circuit Judge.

Wilson Tony Harrell appeals the district court's dismissal of his action

against the Bureau of Prisons, the United States Parole Commission, the United

States Probation Office, and the Department of Justice for alleged violations of

the Privacy Act, 5 U.S.C.  552a. He contends that the district court erred in

imposing a two-year statute of limitations bar, see  552a(g)(5). We affirm.(1)

The Privacy Act "governs the government's collection and dissemination of

information and maintenance of its records [and] generally allows individuals to

gain access to government records on them and to request correction of inaccurate

records." Gowan v. United States Dep't of the Air Force, 148 F.3d 1182, 1187

(10th Cir. 1998). A cause of action arises under the Act when: (1) an error is

made in maintaining the plaintiff's records, (2) the plaintiff was wronged by such

error, and (3) the plaintiff either knew or had reason to know of the error. See

Bergman v. United States, 751 F.2d 314, 316 (10th Cir. 1984). A new cause of

action does not arise "upon each and every subsequent adverse determination

based on erroneous records," otherwise, "the two-year statute would never run."

Id. at 317.

(1) The case is unanimously ordered submitted without oral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G).

Harrell's claims are based on alleged errors in presentence investigation

reports prepared in connection with his criminal convictions in 1982 and 1983,

which in turn caused errors in the Bureau of Prison's and the Parole

Commission's administration of his sentences. The magistrate judge filed a

report and recommendation carefully examining Harrell's progression through the

criminal justice system. That report noted that Harrell was clearly aware of the

alleged errors on July 29, 1992, when he challenged them during his initial parole

hearing.

The magistrate judge therefore determined that the limitations period for a

Privacy Act claim began to run on July 29, 1992, and because Harrell did not

bring this action until October 12, 1999, recommended that the case be dismissed

for lack of jurisdiction. Additionally, the magistrate judge recommended granting

the Probation Office's motion to dismiss because it is not an agency as defined in

the Privacy Act. See 5 U.S.C.  552(f)(1) (omitting the judicial branch and its

offices from the applicable definition of agency). The district court adopted the

magistrate judge's report and recommendation in full and entered an order of

dismissal.

After conducting a de novo examination of the record and the applicable

law, we agree with the district court's determination that it lacked jurisdiction to

consider the case. Failure to file a Privacy Act claim against the government

within the statute of limitations is jurisdictional. Dilberti v. United States, 817

F.2d 1259, 1262 (7th Cir. 1987). Congress waived the sovereign immunity of the

United States when it enacted the Privacy Act but imposed a two-year statute of

limitations. The statute of limitations qualifies the waiver of sovereign immunity

and "constitutes a limitation on subject matter jurisdiction." Dahn v. United

States, 127 F.3d 1249, 1252 (10th Cir. 1997).

The limitations period began to run when Harrell first became aware of the

alleged errors in his presentence investigation reports-July 29, 1992. Harrell did

not bring his claim until October 12, 1999, and at that time the district court did

not have subject matter jurisdiction to hear his claim. Contrary to Harrell's

argument on appeal, the limitations period was not extended either by the

government's subsequent actions or by his receipt of documents allegedly

corroborating his assertions of error.

Because the district court lacked subject matter jurisdiction to consider

Harrell's time-barred Privacy Act claims, we AFFIRM the district court's order

of dismissal. Harrell's motion to file a supplemental brief is GRANTED.