Doe v. Natl Security Agcy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANE DOE,
Plaintiff-Appellant,
v. No. 97-2650
NATIONAL SECURITY AGENCY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-96-2892-MJG)
Submitted: September 15, 1998
Decided: October 23, 1998
Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Mark Steven Zaid, Washington, D.C., for Appellant. Lynne A. Bat-
taglia, United States Attorney, Earle Bronson Wilson, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jane Doe appeals the district court memorandum and order dis-
missing her claim under The Privacy Act of 1974, 5 U.S.C.A. § 552a
(West 1996 & Supp. 1998). Doe contends the court erred in finding
an agency relationship between her and her attorney which resulted
in a determination that her complaint was barred by the Privacy Act's
two-year statute of limitations. Finding no reversible error, we
affirm.*
Doe has been employed by the National Security Agency ("NSA")
since 1988. In 1991, she commenced a civil lawsuit in Virginia to
recover damages caused by an automobile accident unrelated to her
employment. During the course of litigation, the defendant's attorney
requested certain employment information to ascertain whether insur-
ance coverage had been paid to Doe as a result of the accident. Doe
signed an authorization instructing the NSA to release copies of her
employment records to both the defendant's and her own attorney.
On or about September 7, 1994, Doe's attorney received copies of
Doe's records from the NSA. The released records included her
employment file, leave records, complete medical file, psychological
and performance evaluations, job application materials and pre-
employment records and tests. On or about September 19, 1994, Doe
received copies of the released documents through the NSA's internal
mail system.
On September 13, 1996, Doe commenced the instant law suit. She
alleged that the NSA's disclosure of certain records violated the Pri-
vacy Act. The NSA moved to dismiss the complaint on the ground
that the complaint was barred by the Privacy Act's two-year statute
of limitations.
_________________________________________________________________
*Doe's amended complaint raised additional claims under the Consti-
tution and the Administrative Procedure Act which have since been
abandoned.
2
The district court found that Doe's cause of action accrued when
Doe knew or had reason to know that the NSA had committed a vio-
lation. Following the general rule under Maryland law that a principal
is charged with knowledge of the agent acquired by the agent in the
course of the proceedings, the court concluded that Doe's cause of
action accrued on or about September 7, 1994, when her attorney
received the employment records. Thus, the court dismissed the com-
plaint as untimely.
We review the district court's decision to grant the motion to dis-
miss de novo. We affirm the district court's dismissal only if it
appears beyond doubt that Doe can prove no set of facts in support
of her claim that would entitle her to relief. See Flood v. New Hano-
ver County, 125 F.3d 249, 251 (4th Cir. 1997).
The Privacy Act prohibits a government agency from disclosing an
internal record to another person or agency without the consent of the
person to whom the information pertains, with certain exceptions not
relevant to this action. See 5 U.S.C.A.§ 552a(b). The Privacy Act
requires that an action be brought within two years from the date on
which the action arose. See 5 U.S.C. § 552a(g)(5). A cause of action
arises under the Privacy Act when "the person knows or has reason
to know of the alleged violation." Rose v. United States, 905 F.2d
1257, 1259 (9th Cir. 1990); see also Diliberti v. United States, 817
F.2d 1259, 1262 (7th Cir. 1987). The failure to comply with the limi-
tations period deprives the court of subject matter jurisdiction. See
Diliberti, 817 F.2d at 1262.
Doe does not challenge the district court's decision to use princi-
ples of agency law to determine when her cause of action accrued.
Doe contends, however, that the court erred in using Maryland law
rather than Virginia law. Doe argues that Virginia law governs the
action because the released records were received by her attorney in
Virginia and the relationship between her and her attorney was cre-
ated in Virginia for the purpose of litigating a Virginia lawsuit.
According to Doe, if Virginia law is used, a different conclusion is
reached. The NSA contends that federal common law governs this
action. Furthermore, the NSA contends that Doe is foreclosed from
raising this issue because she did not present it to the district court.
3
As this court has repeatedly held, issues raised for the first time on
appeal generally will not be considered. "``Exceptions to this general
rule are made only in very limited circumstances, such as where
refusal to consider the newly-raised issue would be plain error or
would result in a fundamental miscarriage of justice.'" Karpel v.
Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (quot-
ing Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993)).
Doe contends that the court's decision to use Maryland law was
plain error. We disagree. The violation Doe complains of was the
NSA's disclosure of personal information from its Maryland office.
Under these circumstances, using Maryland's law on agency may
have been entirely appropriate. Furthermore, as this action concerns
a federal question in which a federal agency has a critical interest in
its outcome, using federal common law, as the NSA suggests, may
also be appropriate. See Caudill v. Blue Cross & Blue Shield of N. C.,
999 F.2d 74, 78-79 (4th Cir. 1993) (federal common law is applicable
if the matter involves a unique federal interest and significant conflict
exists between the federal interest and the effect of state law or the
application of state law frustrates the federal legislation's objectives).
Regardless of which law is used, even Virginia's law which strictly
limits the authority of the agent, Doe's claim must fail. See, e.g., Eitel
v. Schmidlapp, 459 F.2d 609, 613 (4th Cir. 1972) (Virginia "strictly
limits the authority of an agent to the letter of his instructions"). Vir-
ginia follows the general rule that knowledge of an agent gained
while executing the agency is imputed to the principal. Id. at 615; see
also Grogg v. Stevens, 6 F.2d 862, 863 (4th Cir. 1925). This rule is
based upon the principle that it is the "agent's duty to communicate
to his principal the knowledge which he has respecting the subject
matter" of the relationship. People's Nat'l Bank of Rocky Mount v.
Morris, 148 S.E. 828, 830 (Va. 1929). The principal is subject to the
liabilities imposed by this knowledge. See Baker v. Berry Hill Min-
eral Springs Co., 71 S.E. 626 (Va. 1911). Exceptions may occur if the
agent is committing a fraud upon the principal, engaged in self-
dealing, or if communicating the knowledge to the principal would be
illegal. See Fulwiler v. Peters, 20 S.E.2d 500, 502-03 (Va. 1942); In
re Distilled Spirits, 78 U.S. 356 (11 Wall.), 367 (1870). None of those
exceptions apply here.
4
We are not persuaded by Doe's argument that her attorney was
only authorized to receive certain employment records. Her attorney
received the disclosed documents only because of the agency relation-
ship. It was the agent's duty to inform Doe what documents had been
disclosed by her employer under the authority of her authorization,
even if some of the documents were released in error. Furthermore,
although Doe insists that her attorney's authority had limits, we find
it difficult to believe that she would not want her attorney to receive
the same documents her adversary received.
We are also not persuaded by Doe's argument that her attorney was
not under a duty to inform her of the disclosure because he did not
appreciate the significance of the documents. Doe claimed in her
complaint that the disclosure of the records had a significant detri-
mental impact on her Virginia lawsuit. According to Doe, the defen-
dant's attorney used the disclosed records to "embarrass, humiliate
and intimidate Jane Doe during judicial proceedings" and "the jury
awarded Jane Doe a lesser amount of damages" due to the defendant's
attorney's use of the disclosed records. (J.A. at 8). Obviously, by
Doe's own admission, the disclosed records were very relevant to
Doe's lawsuit. Doe's attorney should have recognized the signifi-
cance of the records. See State Bank of Pamplin v. Payne, 159 S.E.
163, 165 (Va. 1931) (agent had duty to disclose material information
to principal).
It was Doe's duty to establish that the complaint was filed within
the Privacy Act's limitations period. See Bowyer v. United States
Dep't of Air Force, 875 F.2d 632, 635 (7th Cir. 1989). Dismissal was
entirely appropriate because the face of Doe's complaint showed that
the limitations period had run. See Brooks v. Winston-Salem, 85 F.3d
178, 181 (4th Cir. 1996). Doe submitted no evidence contradicting the
complaint's statement regarding when her attorney received the dis-
closed documents.
Accordingly, we affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
5