Carter v. United States Department of Defense (DOD) et al

Filing 13

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, the Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form), 2 is granted; the Plaintiff's Complaint for Declaratory and Injunctive Relief; and for Damages under the U.S. Privacy Act, 1 is dismissed without prejudice. (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TERRY LOUIS CARTER,
Plaintiff,
vs.

No. CIV 16-0786 JB/SMV

UNITED STATES DEPARTMENT OF
DEFENSE; UNITED STATES
DEPARTMENT OF THE AIR FORCE; and
MIKE O’CALLAGHAN FEDERAL
MEDICAL CENTER, USAF 99TH MEDICAL
GROUP.
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Plaintiff’s Complaint for Declaratory
and Injunctive Relief; and for Damages under the U.S. Privacy Act, filed July 6, 2016 (Doc.
1)(“Complaint”); and (ii) the Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form), filed July 6, 2016 (Doc. 2)(“Application”). Plaintiff Terry
Louis Carter appears pro se. The primary issues are (i) whether Carter may proceed in forma
pauperis; and (ii) whether the statute of limitations in the Privacy Act, 5 U.S.C. § 552a(g)(5),
bars the counts that Carter asserts in the Complaint. The Court concludes that, although Carter
may proceed in forma pauperis, the Privacy Act’s statute of limitations bars the counts which the
Complaint brings. Accordingly, the Court will: (i) grant Carter’s Application and (ii) dismiss
Carter’s Complaint without prejudice.
FACTUAL BACKGROUND
The Court takes its facts from the Complaint. See Complaint ¶¶ 1-33, at 1-17. On
September 5, 2013, Carter injured his left knee while working for a private employer. See

Complaint ¶ 9, at 4-5. On April 30, 2014, Carter visited the Mike O’Callaghan Federal Medical
Center (“MOFMC”).1 See Complaint ¶ 9, at 4. Bradley G. McLaughlin, a physicians’ assistant
at MOGMC, examined Carter. See Complaint at 5. Carter told McLaughlin about his injured
knee and the circumstances in which it was injured. See Complaint ¶ 10, at 5. On May 12,
2014, Carter returned to MOFMC for a follow-up examination and further treatment for his knee.
See Complaint ¶ 11, at 5. At the May 12, 2014, visit, MOFMC personnel made additions to
Carter’s medical records. See Complaint ¶ 12, at 5.
On June 30, 2014, Carter returned to MOFMC, and again McLaughlin treated Carter.
See Complaint ¶ 13, at 5. On that day, Carter discovered that McLaughlin had entered an
allegedly false medical history into Carter’s medical records on April 30, 2014. See Complaint ¶
13, at 5. At the June 30, 2014, visit, Carter told McLaughlin that the records of Carter’s medical
history required correction, but McLaughlin did not respond. See Complaint ¶ 13, at 5-6. On
August 14, 2014, Carter again visited MOFMC for treatment, and McLaughlin treated him. See
Complaint ¶ 14, at 6. At that examination, McLaughlin did not mention Carter’s June 30, 2014,
request that McLaughlin or another person correct his medical records. See Complaint ¶ 14, at 6.
On August 15, 2014, Carter “formally sought” MOFMC to amend his medical records.
See Complaint ¶ 15, at 6.

Specifically, Carter objected to the following excerpts that

McLaughlin entered into his medical records on April 30, 2014: “[Carter] reports his symptoms
1

The Mike O’Callaghan Federal Medical Center, located in Las Vegas, Nevada, is a joint
venture between the 99th Medical Group and VA Southern Nevada Healthcare Systems. See VA
Southern
Nevada
Healthcare
System
(February
6,
2017),
http://www.lasvegas.va.gov/locations/Mike_O_Callahan_Federal_Medical_Center.asp. The 99th
Medical Group provides medical care to Department of Defense and Veterans beneficiaries and
is associated with the United States Air Force 99th Air Base Wing located at Nellis Air Force
Air
Base
Wing
(February
13,
2017),
Base,
Nevada.
See
99th
http://www.nellis.af.mil/About/FactSheets/Display/tabid/6485/Article/284154/99th-air-basewing.aspx.
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have been present for several years . . . . [Carter] reports a remote history of a twisting injury to
the knee several years ago the onset of his symptoms . . . . [Carter] denies any change in
sensation or function distally.”

Complaint ¶ 15, at 6 (alteration added)(emphasis in

Complaint)(internal quotation marks omitted). Carter did not receive a response from MOFMC
regarding his request that MOFMC amend his medical records. See Complaint ¶ 16, at 6.
PROCEDURAL BACKGROUND
1.

Carter’s Complaint.

Carter filed a verified complaint on July 6, 2016. See Complaint at 1, 17. In the
Complaint, Carter alleges three counts. See Complaint ¶¶ 16-33, at 4-17. First, Carter alleges
that the Defendants violated his rights under the Privacy Act by failing to act upon his request
that the Defendants amend his medical records to remove false medical information.

See

Complaint ¶ 8, at 4 (citing 5 U.S.C. § 552a(d)(2)-(3)). Carter alleges that the Defendants failed
to provide the “Privacy Act Statement” that 5 U.S.C. § 552a(e)(3) requires. See Complaint ¶ 16,
at 6. Carter further alleges that the Defendants lacked a basis to believe that the medical records
which McLaughlin made on April 30, 2014, were accurate, because the Defendants had access to
records that document decades of his medical history. See Complaint ¶ 17, at 7. Carter
additionally states that the Defendants “have routinely compiled false medical information over
the years to interfere with Plaintiff’s rights to work related compensation benefits.” Complaint ¶
18, at 7.
Second, Carter alleges that the Defendants violated his Privacy Act right “by failing or
refusing to maintain Plaintiff’s medical records with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to insure fairness to Plaintiff in making any
determination about him.” Complaint ¶ 19, at 7 (citing 5 U.S.C. § 552a(e)(5)). Carter further

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alleges that the Defendants’ recording of false medical history was “either a deliberate
misrepresentation manifested from an inimical design to unconsciously interfere with Plaintiff’s
right to proper medical treatment, and/or to prevent Plaintiff from substantially establishing a
record of the continuing debilitation from Plaintiff’s September 2013 work related injury.”
Complaint ¶ 21, at 8. Carter also states that, because he is a beneficiary of a retirement program
for United States Armed Forces members, “the requested correction of said medical records was
necessary to insure and maintain the integrity of said federal benefits program . . . .” Complaint
¶ 22, at 8. Further, Carter alleges that the Defendants knew that his medical records’ inaccuracy
has collateral adverse consequences for Carter’s on-going workers’ compensation claim. See
Complaint ¶ 24, at 9. Carter also alleges that the Defendants’ failure to amend his medical
records was “the catalyst for denying Plaintiff access to diagnostic procedures that could have
illuminated more objective findings central to any treatment plan appropriate to Plaintiff’s
deteriorating condition.” Complaint ¶ 27, at 11.
Third, Carter states that the Defendants violated his Privacy Act rights “by failing or
refusing to insure the integrity of Plaintiff’s medical records . . . .” Complaint ¶ 29, at 12 (citing
5 U.S.C. § 552a(e)(10)). Carter also says that the Defendants failed or refused to protect Carter
against any threats which could result in substantial harm or unfairness to him “based upon the
information maintained in his medical records.” Complaint ¶ 29, at 12. Carter asserts that the
Commander of the 99th Medical Group was “made aware” of Carter’s request to amend his
medical records, but the “Commander undertook no substantial action in connection
therewith . . . .” Complaint ¶ 31, at 12.
Carter requests equitable relief and damages. See Complaint at 15-17. He wants the
Court to declare that the April 30, 2014, and May 12, 2014, medical reports that McLaughlin

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wrote be amended to reflect “Retired USMC Cpl. Terry L. Carter, 56 year old male, sustained L
knee injury in Sep 2013 when a platform in the back of a truck collapsed as he was twisting on
his L LE[].”

Complaint at 15 (alteration in Complaint).

Carter also seeks damages and

attorney’s fees. See Complaint at 15-17.
2.

Carter’s Application to Proceed In Forma Pauperis.

In conjunction with his Complaint, Carter also filed an application to proceed without
paying fees or costs. See Application at 1. Carter signed the Application, declaring that he is
unable to pay the costs of these proceedings and provided the following information: (i) the
income amount he expects to receive next month is $2,608.83 in disability, see Application at 2;
(ii) his average monthly expenses are $3,418.81, see Application at 5; (iii) the value of his assets
is $2,019.00, see Application at 3; (iv) his amount of cash is fifty-five cents, and he has $2.55 in
his Wells Fargo checking and savings account, see Application at 2; (iv) he is unemployed, see
Application at 2; (v) the United States Department of Veterans Affairs owes him $397,800.00;
and (v) he is “homeless as a result of a tactical move by the U.S. Department of Veterans’
Affairs to interfere with [Carter’s] prosecution of claims against the agency . . . ,” Application at
5 (alteration added). On November 8, 2016, Carter filed notices that summons were served on
the Defendants on November 7, 2016. See Summons to 99th Medical Group, filed November 8,
2016 (Doc. 8); Summons to Secretary of the Air Force, filed November 8, 2016 (Doc. 9);
Summons to Secretary of Defense, filed November 8, 2016 (Doc. 10).
3.

The Defendants’ Answer.

On January 9, 2017, the Defendants answered the Complaint. See Defendants’ Answer
to Plaintiff’s Complaint, filed January 9, 2017 (Doc. 12)(“Answer”). The Defendants admitted
that McLaughlin took Carter’s medical history on April 30, 2014, and that Carter attended a

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follow-up appointment in connection with the treatment of his knee on May 12, 2014. See
Answer at 2. The Defendants also admit that “entries were made in Plaintiff’s medical record in
connection with his April 30, 2014 appointment . . . .” Answer at 3. The Defendants also admit
that they maintained Carter’s medical records at MOFMC, including records concerning Carter’s
medical examinations. See Answer at 3.

The Defendants further admit that Carter sent an

August 15, 2014, letter to McLaughlin and to the Commander of the 99th Medical Group, but
state that no response is required. See Answer at 3. The Defendants also admit that Carter is a
retired United States Armed Forces member and is entitled to benefits that the law requires be
given to retired members. See Answer at 4. The Defendants deny the balance of Carter’s
allegations. See Answer at 1-5.
The Defendants raise several “affirmative defenses.” Answer at 5. The Defendants
argue: (i) that the Complaint fails to state a claim upon which relief may be granted, see Answer
at 5; (ii) that Carter’s claims are barred, because Carter failed to exhaust his administrative
remedies, see Answer at 5; (iii) that Carter’s claims are barred, because Carter failed to timely
exhaust his administrative remedies, see Answer at 5; and (iv) that Carter’s claims are barred,
because of his failure to mitigate damages, see Answer at 5. Consequently, the Defendants
request that the Court dismiss the Complaint with prejudice. See Answer at 5.
LAW REGARDING PROCEEDING IN FORMA PAUPERIS
The statute for proceedings in forma pauperis, see 28 U.S.C. § 1915(a), provides that the
court may authorize the commencement of any suit without prepayment of fees by a person who
submits an affidavit which includes a statement of all assets that the person possesses and that
the person is unable to pay such fees, see 28 U.S.C. § 1915(a).

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When a district court receives an application for leave to proceed in forma
pauperis, it should examine the papers and determine if the requirements of §
1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court
finds that the allegations of poverty are untrue or that the action is frivolous or
malicious, it may dismiss the case . . . .
Menefee v. Werholtz, 368 Fed. App’x 879, 884 (10th Cir. 2010)(citing Ragan v. Cox, 305 F.2d
58, 60 (10th Cir. 1962)).
“The statute [allowing a litigant to proceed in forma pauperis] was intended for the
benefit of those too poor to pay or give security for costs . . . .” Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute,”
“an affidavit is sufficient which states that one cannot because of his poverty pay or give security
for the costs and still be able to provide himself and dependents with the necessities of life.”
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. at 339. The Court may, however, deny
permission for a person to proceed in forma pauperis where his or her monthly income exceeds
his or her monthly expenses by a few hundred dollars. See Brewer v. City of Overland Park
Police Department, 24 F. App’x 977, 979 (10th Cir. 2002)(holding that litigant whose monthly
income exceeded his monthly expenses by a few hundred dollars according to his own
accounting appeared to have sufficient income to pay filing fees, and, thus, was not entitled to in
forma pauperis status).2 “[A]n application to proceed in forma pauperis should be evaluated in
light of the applicant’s present financial status.” Scherer v. Kansas, 263 F. App’x 667, 669 (10th
Cir. 2008)(citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988)).

2

At the time of the ruling in Brewer v. City of Overland Park Police Department, the
filing fee for the appeal was $100.00. See 28 U.S.C. § 1983 (2001). Brewer’s monthly income
exceeded his monthly expenses by $242.00. See Brewer v. City of Overland Park Police
Department, No. 01-3055, Appellant’s Motion for Leave to Proceed on Appeal Without
Prepayment of Costs or Fees at 3-7 (10th Cir. May 11, 2001).
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The Court may grant a motion to proceed in forma pauperis even if the complaint fails to
state a claim and the Court must dismiss it pursuant to 28 U.S.C. § 1915(e)(2). See Buchheit v.
Green, 705 F.3d 1157, 1160-61 (10th Cir. 2012)(“There is simply nothing in the language of the
statute [regarding proceedings in forma pauperis, 28 U.S.C. § 1915] indicating that such a
dismissal must occur before the grant of a motion to proceed [in forma pauperis].”).
[I]f an application to proceed in forma pauperis is supported by papers satisfying
the requirements of 28 U.S.C. § 1915(a) leave to proceed should be granted, and
then, if the court discovers that the action is frivolous or improper or that the
allegations of poverty are untrue, it can dismiss the proceeding under 28 U.S.C. §
1915(d).
Oughton v. United States, 310 F.2d 803, 804 (10th Cir. 1962). Section 1915 provides that the
“officers of the court shall issue and serve all process, and perform all duties in [proceedings in
forma pauperis].” 28 U.S.C. § 1915(d). Further, rule 4 of the Federal Rules of Civil Procedure
provides:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
LAW REGARDING DISMISSAL PURSUANT TO 28 U.S.C. 1915(e)(2)(B)
The statute governing proceedings in forma pauperis requires federal courts to dismiss an
in forma pauperis proceeding that “is frivolous or malicious; . . . fails to state a claim on which
relief may be granted; . . . or seeks monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2). “Dismissal of a pro se complaint for failure to state a claim is
proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it

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would be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th
Cir. 2007).
While we have held that a sua sponte dismissal pursuant to § 1915(e)(2) need not
be preceded by notice and an opportunity to amend when amendment would be
futile, a district court should allow a plaintiff an opportunity to cure technical
errors or otherwise amend the complaint when doing so would yield a meritorious
claim.
Montana v. Hargett, 84 F. App’x 15, 17 (10th Cir. 2003).
“In determining whether a dismissal is proper, we must accept the allegations of the
complaint as true and construe those allegations, and any reasonable inferences that might be
drawn from them, in the light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d at 1217.
The court looks to the specific allegations in the complaint to determine whether they plausibly
support a legal claim for relief -- i.e., the factual allegations must be enough to raise a right to
relief above the speculative level. See Kay v. Bemis, 500 F.3d at 1218 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)). Dismissal of an in forma pauperis complaint as frivolous is not
an abuse of discretion if based on a determination that the pro se litigant did not state a viable
legal claim and that the complaint consisted of little more than unintelligible ramblings. See
Triplett v. Triplett, 166 F. App’x 338, 339-40 (10th Cir. 2006). However, “pro se litigants are to
be given reasonable opportunity to remedy the defects in their pleadings.” Hall v. Bellmon, 935
F.2d 1106, 1110 n.3 (10th Cir. 1991).
LAW REGARDING THE PRIVACY ACT’S STATUTE OF LIMITATIONS
The Privacy Act, 5 U.S.C. § 552a, “‘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.’”
Harrell v. Fleming, 285 F.3d 1292, 1293 (10th Cir. 2002)(alteration in original)(quoting Gowan

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v. United States Dep’t of the Air Force, 148 F.3d 1182, 1187 (10th Cir. 1998)). See Skinner v.
U.S. Dep’t of Justice & Bureau of Prisons, 584 F.3d 1093, 1096 (D.C. Cir. 2009)(concluding that
the Privacy Act “imposes a set of substantive obligations on agencies that maintain systems of
records, including the requirement that records used in making determinations about individuals
be accurately maintained”)(citing 5 U.S.C. § 552a(e)(5)). “The Privacy Act was enacted to
promote ‘governmental respect for the privacy of citizens by requiring all departments and
agencies of the executive branch and their employees to observe certain constitutional rules in
the computerization, collection, management, use, and disclosure of personal information about
individuals.’” Wren v. Harris, 675 F.2d 1144, 1145-46 (10th Cir. 1982)(quoting S. Rep. No. 931183, 93rd Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 6916). The Privacy Act
“provides civil remedies for its violation, including court-ordered amendment of records and
money damages.” Skinner v. U.S. Dep’t of Justice & Bureau of Prisons, 584 F.3d at 1096. “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.” Harrell v. Fleming, 285 F.3d at 1293 (citing Bergman v. United
States, 751 F.2d 314, 316 (10th Cir. 1984)).
The Privacy Act contains a statute of limitations. See 5 U.S.C. § 552a(g)(5). A statute of
limitations bar is an affirmative defense, and “it may be resolved on a . . . motion to dismiss
‘when the dates given in the complaint make clear that the right sued upon has been
extinguished.’”

Torrez v. Eley, 378 F. App’x 770, 772 (10th Cir. 2010)(omission

added)(quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980)).
See Lee v. Rocky Mountain UFCW Unions & Emp’rs Trust Pension Plan, No. 92-1308, 1993
WL 482951, at *1 (10th Cir. Nov. 23, 1993)(“Because the critical dates appeared plainly on the

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face of [plaintiff’s] complaint, we conclude that the statute of limitations defense was properly
raised and resolved in the Rule 12(b) context.”).

When a party has asserted a statute of

limitations issue in a rule 12(b) motion, the Court accepts all well-pleaded factual allegations in
the complaint as true and views them in the light most favorable to the plaintiff to determine
whether the statute of limitations has run. See Sunrise Valley, LLC v. Kempthorne, 528 F.3d
1251, 1254 (10th Cir. 2008).
Under the Privacy Act, a plaintiff must file suit within two years from the date on which
the cause of action arises. Jackson v. Shinseki, 526 F. App’x 814, 816 (10th Cir. 2013)(citing 5
U.S.C. § 552a(g)(5)). See Lockett v. Potter, 259 F. App’x 784, 786-87 (6th Cir. 2008)(“[A]
plaintiff must bring a Privacy Act claim in federal district court within two years from the date of
the alleged violation.”)(citing 5 U.S.C. § 552a(g)(5)). The statute provides:
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. Nothing in this
section shall be construed to authorize any civil action by reason of any injury
sustained as the result of a disclosure of a record prior to September 27, 1975.
5 U.S.C. § 552a(g)(5)(emphasis added). The United States Court of Appeals for the Tenth
Circuit has held that that the statute of limitations for a Privacy Act claim begins to run when the
plaintiff knows or has reason to know of the alleged violation. See Bergman v. United States,
751 F.2d 314, 316 (10th Cir. 1984). Other Courts of Appeals also have held that the Privacy
Act’s statute of limitations begins when the plaintiff knows or has reason to know of a Privacy

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Act violation. See Lockett v. Potter, 259 F. App’x 784, 786-87 (6th Cir. 2008); Oja v. U.S.
Army Corps of Eng’rs, 440 F.3d 1122, 1135 (9th Cir. 2006); Green v. Westphal, 94 F. App’x
902, 904 (3d Cir. 2004); Davis v. U.S. Dep’t of Justice, 204 F.3d 723, 726 (7th Cir. 2000); Doe
v. Nat’l Sec. Agency, No. 97-2650, 1998 WL 743665, at *1 (4th Cir. 1998); Tijerina v. Walters,
821 F.2d 789, 797-98 (D.C. Cir. 1987).
According to the Tenth Circuit, a plaintiff’s “[f]ailure to file a Privacy Act claim against
the government within the statute of limitations is jurisdictional.” Harrell v. Fleming, 285 F.3d
at 1293 (citing Diliberti 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.” Harrell v. Fleming, 285 F.3d at 1293. “The statute of
limitations qualifies the waiver of sovereign immunity and “‘constitutes a limitation on subject
matter jurisdiction.’” Harrell v. Fleming, 285 F.3d at 1293 (quoting Dahn v. United States, 127
F.3d 1249, 1252 (10th Cir. 1997)). See Dahn v. United States, 127 F.3d at 1252 (“This statutory
time-bar qualifies a waiver of sovereign immunity and, thus, constitutes a limitation on subject
matter jurisdiction.”)(citing United States v. Dalm, 494 U.S. 596, 608 (1990); Dieckmann v.
United States, 550 F.2d 622, 623 (10th Cir. 1977)). Accordingly, a plaintiff’s failure to file a
Privacy Act claim against the government within the Privacy Act’s limitations period “deprives
the court of subject matter jurisdiction.” Jackson v. Shinseki, 526 F. App’x at 816 (citing Harrell
v. Fleming, 285 F.3d at 1293-94).
The Tenth Circuit’s approach to the jurisdictional nature of the Privacy Act’s statute of
limitations follows the United States Court of Appeals for the Seventh Circuit’s opinion in
Diliberti v. United States, 817 F.2d at 1262. In Diliberti v. United States, the Seventh Circuit
concluded:

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No federal court has expressly addressed whether the two-year statute of
limitations contained in the Privacy Act, 5 U.S.C. § 552a(g)(5), is a jurisdictional
prerequisite to bringing suit. The statutory time limitation, however, is
unquestionably an integral condition of the sovereign’s consent to be sued under
the Privacy Act. Accordingly, we hold that a plaintiff’s failure to file suit within
the time period specified in § 552a(g)(5) deprives the federal courts of subject
matter jurisdiction over the action.
Diliberti v. United States, 817 F.2d at 1262. To arrive at this holding, the Seventh Circuit
reasoned:
Courts have consistently held that where the government’s consent as sovereign
to be sued is conditioned upon the filing of suit within a specified period of time,
strict compliance with that condition is a jurisdictional prerequisite. See, e.g.,
McIntyre v. United States, 789 F.2d 1408, 1411 (9th Cir. 1986) (action to quiet
title against U.S., 28 U.S.C. § 2409a(f)); Clifton v. Heckler, 755 F.2d 1138, 11441145 (5th Cir. 1985)(action against U.S. for attorney’s fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412(d)(1)(B)); Charlton v. United States, 743
F.2d 557, 558-559 (7th Cir. 1984)(suit under Federal Tort Claims Act, 28 U.S.C.
§ 2401(b)); Sims v. Heckler, 725 F.2d 1143, 1145 (7th Cir. 1984)(suit against
U.S. under Title VII); Walters v. Secretary of Defense, 725 F.2d 107, 112 n.12
(D.C. Cir. 1983) (28 U.S.C. § 2401(a)); Anderberg v. United States, 718 F.2d
976, 977 (10th Cir. 1983) (28 U.S.C. § 2401(a)); Monark Boat Co. v. NLRB, 708
F.2d 1322, 1326-27 (8th Cir. 1983)(action against U.S. for attorney’s fees under
the Equal Access to Justice Act, 5 U.S.C. § 504(a)(2)); Garrett v. United States,
640 F.2d 24, 26 (6th Cir. 1981)(28 U.S.C. § 2401(b)); Knapp v. United States,
636 F.2d 279, 282 (10th Cir. 1980)(28 U.S.C. § 2409a(f)); 14 Wright, Miller &
Cooper, Federal Practice and Procedure § 3654 (1985). This characterization of
the statute of limitations as jurisdictional in cases against the federal government
arises out of the doctrine of sovereign immunity. As the Supreme Court has
repeatedly held, “the United States, as sovereign, is immune from suit save as it
consents to be sued . . . and the terms of its consent to be sued in any court define
that court’s jurisdiction to entertain the suit.” Lehman v. Nakshian, 453 U.S. 156,
160 (quoting United States v. Sherwood, 312 U.S. 584 (1941)). In Block v. North
Dakota, 461 U.S. 273, 287 (1983), the Court specifically addressed statutes of
limitations: “When waiver legislation contains a statute of limitations, the
limitations provision constitutes a condition on the waiver of sovereign
immunity.” See also Simon v. United States, 244 F.2d 703, 705 (5th Cir. 1957)
(statute containing time limit for filing suit against U.S. “is not a statute of
limitations but a statute granting for a limited time the right of action afforded”).
Conditions attached to the sovereign’s consent to be sued must be strictly
construed. Block, 461 U.S. at 287; Lehman, 453 U.S. at 160-161; United States
v. Kubrick, 444 U.S. 111, 117-18 (1979).

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Diliberti v. United States, 817 F.2d at 1261-62.
The Courts of Appeal have not unanimously adhered to the view that the Privacy Act’s
statute of limitations is jurisdictional, such that a plaintiff’s failure to file a Privacy Act claim
within the Privacy Act’s limitations period deprives a federal court of subject-matter jurisdiction
over the claim. In particular, the United States Court of Appeals for the D.C. Circuit and the
United States Court of Appeals for the Ninth Circuit have each held that the Privacy Act’s statute
of limitations is not jurisdictional. See Rouse v. U.S. Dep’t of State, 567 F.3d 408, 415-16
(2008)(holding that the Privacy Act’s statute of limitations is not categorically jurisdictional);
Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 278 n.1 (D.C. Cir. 2003)(overruling the D.C.
Circuit’s prior statement in Griffin v. United States Parole Comm’n, 192 F.3d 1081, 1082 (D.C.
Cir. 1999)(per curium), that the limitation period in the Privacy Act is jurisdictional). See also
Griffin v. U.S. Parole Comm’n, 47 F. Supp. 2d 12, 15-16 (D.D.C. 1999)(holding that the court
“has subject matter jurisdiction over plaintiff’s Privacy Act claim [although the claim was filed
after the statute of limitations had run], but that plaintiff has failed to state a claim upon which
relief may be granted”), aff’d, 192 F.3d 1081 (D.C. Cir. 1999).
As the D.C. Circuit recognized, “[a]t least until 1990, it was not uncommon for a court to
deem a time limit for suing the Government ‘jurisdictional’ and hence not subject to judicial
malleation.” Chung v. U.S. Dep’t of Justice, 333 F.3d at 276 (citing Acting on Smoking &
Health v. C.A.B., 724 F.2d 211, 225 (D.C. Cir. 1984); Soriano v. United States, 352 U.S. 270,
276 (1957)). The Supreme Court’s decision in Irwin v. Department of Veterans Affairs, 498
U.S. 89 (1990), however, vitiated this “jurisdictional” view of statutes of limitations relating to
claims against the United States. Chung v. U.S. Dep’t of Justice, 333 F.3d at 276. In Rouse v.
U.S. Dep’t of State, the Ninth Circuit explained why: (i) if the Privacy Act’s statute of

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limitations is a jurisdictional bar, then the traditional defense of equitable tolling cannot apply,
see Rouse v. U.S. Dep’t of State, 567 F.3d at 415 (citing Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982)); (ii) but, in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990),
“the Supreme Court announced a ‘general rule’ that ‘the same rebuttable presumption of
equitable tolling applicable to suits against private defendants should also apply to suits against
the United States,’” see Rouse v. U.S. Dep’t of State, 567 F.3d at 415 (quoting Irwin v.
Department of Veterans Affairs, 498 U.S. at 95-96); (iii) therefore, because the Privacy Act’s
statute of limitations may be equitably tolled, it cannot be a categorically jurisdictional bar, see
Rouse v. U.S. Dep’t of State, 567 F.3d at 416 (citing Chung v. U.S. Dep’t of Justice, 333 F.3d at
277. In Rouse v. U.S. Dep’t of State, the Ninth Circuit observed that, after the Supreme Court
decided Irwin v. Department of Veterans Affairs, 498 U.S. at 95-96, “at least two other circuits
(one in an unpublished opinion) have . . . ruled that § 552a(g)(5) is jurisdictional.” Rouse v. U.S.
Dep’t of State, 567 F.3d at 416 n.5 (citing Harrell v. Fleming, 285 F.3d at 1293; Weber v.
Henderson, 33 F. App’x 610, 611 (3d Cir. 2002)). The Ninth Circuit also noted, however, that
neither Harrell v. Fleming, 285 F.3d at 1293, nor Weber v. Henderson, 33 F. App’x at 611,
“appear to have considered the implications of Irwin.” Rouse v. U.S. Dep’t of State, 567 F.3d at
416 n.5 (alteration added).
LAW REGARDING RULE 12(B)(1)
“Federal courts are courts of limited jurisdiction; they are empowered to hear only those
cases authorized and defined in the Constitution which have been entrusted to them under a
jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th
Cir. 1994)(citations omitted). A plaintiff generally bears the burden of demonstrating the court’s
jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

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104 (1998)(“[T]he party invoking federal jurisdiction bears the burden of establishing its
existence.”). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to raise the
defense of the court’s “lack of jurisdiction over the subject matter” by motion.
Fed. R. Civ. P. 12(b)(1). The Tenth Circuit has held that motions to dismiss for lack of subjectmatter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the
complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts
upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F. 3d 1173, 1180
(10th Cir. 2002).
On a facial attack, a plaintiff is afforded safeguards similar to those provided in
opposing a rule 12(b)(6) motion: the court must consider the complaint’s
allegations to be true. But when the attack is aimed at the jurisdictional facts
themselves, a district court may not presume the truthfulness of those allegations.
A court has wide discretion to allow affidavits, other documents, and a limited
evidentiary hearing to resolve disputed jurisdictional facts under rule 12(b)(1). In
such instances, a court’s reference to evidence outside the pleadings does not
convert the motion to a Rule 56 [summary-judgment] motion.
Hill v. Vanderbilt Capital Advisors, LLC, No. CIV 10–0133 JB/KBM, 2011 WL 6013025, at *8
(D.N.M. Sept. 30, 2011)(Browning, J.)(alteration in original)(quoting Alto Eldorado Partners v.
City of Santa Fe, No. CIV. 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. March 11,
2009)(Browning, J.))(internal citations omitted). As the United States Court of Appeals for the
Fifth Circuit has stated:
[T]he trial court may proceed as it never could under 12(b)(6) or
Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial
court’s jurisdiction -- its very power to hear the case -- there is substantial
authority that the trial court is free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case. In short, no presumptive truthfulness
attaches to plaintiff’s allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the merits of jurisdictional
claims.

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Williamson v. Tucker, 645 F.2d at 412-13 (5th Cir.1981)(quoting Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Consequently, when making a rule 12(b)(1)
motion, a party may go beyond the allegations in the complaint to challenge the facts upon which
jurisdiction depends, and may do so by relying on affidavits or other evidence properly before
the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th
Cir. 1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
LAW REGARDING STATUTES OF LIMITATIONS AND RULE 12(B)(6)
“Although a statute of limitations bar is an affirmative defense, it may be resolved on a
Rule 12(b)(6) motion to dismiss ‘when the dates given in the complaint make clear that the right
sued upon has been extinguished.’”

Torrez v. Eley, 378 F. App’x 770, 772 (10th

Cir. 2010)(quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980)).
See Lee v. Rocky Mountain UFCW Unions & Employers Trust Pension Plan, No. 92-1308, 1993
WL 482951, at *1 (10th Cir. Nov. 23, 1993)(“Because the critical dates appeared plainly on the
face of [plaintiff’s] complaint, we conclude that the statute of limitations defense was properly
raised and resolved in the Rule 12(b) context.”).

When a party has asserted a statute of

limitations issue in a rule 12(b)(6) motion, the Court accepts all well-pleaded factual allegations
in the complaint as true and views them in the light most favorable to the plaintiff to determine
whether the statute of limitations has run. See Sunrise Valley, LLC v. Kempthorne, 528 F.3d
1251, 1254 (10th Cir. 2008).
LAW REGARDING EQUITABLE TOLLING
Equitable tolling of a statute of limitations applies only in “rare and exceptional
circumstances.” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007)(quotations omitted).
“Generally, equitable tolling requires a litigant to establish two elements: (1) that he has been

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pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008)(quotations omitted). “Such extraordinary
event[s] include conduct by a defendant that caused the plaintiff to refrain from filing an action
during the applicable period.”

Roberts v. Barreras, 484 F.3d 1236, 1241 (10th

Cir. 2007)(internal quotations omitted). See Gibson v. Klinger, 232 F.3d 799, 808 (10th
Cir. 2000)(stating that the equitable remedy “would be appropriate, for example, when a
[plaintiff] is actually innocent, when an adversary’s conduct -- or other uncontrollable
circumstances -- prevents a [plaintiff] from timely filing, or when a [plaintiff] actively pursues
judicial remedies but files a defective pleading during the statutory period.”).
LAW REGARDING STATUTORY CONSTRUCTION
When interpreting statutes, the Court must start with the plain language. See, e.g., Been
v. O.K. Industries, Inc., 495 F.3d 1217, 1227 (10th Cir. 2007)(“We review issues of statutory
construction de novo, interpret[ing] the words of the statute in light of the purposes Congress
sought to serve.”)(internal quotations and citations omitted). “It is well established that when the
statute’s language is plain, the sole function of the courts -- at least where the disposition
required by the text is not absurd -- is to enforce it according to its terms.” Lamie v. U.S.
Trustee, 540 U.S. 526, 534 (2004)(internal quotations omitted). See In re Trans Alaska Pipeline
Rate Cases, 436 U.S. 631, 643 (1978)(noting that a court may not disregard the statute’s plain
language unless a literal application of the statutory language “would lead to absurd results . . . or
would thwart the obvious purpose of the statute”)(internal quotations omitted). “Courts indulge
a strong presumption that Congress expresses its intent through the language it chooses.
Therefore, when the terms of a statute are clear and unambiguous, our inquiry ends and we
should stick to our duty of enforcing the terms of the statute as Congress has drafted it.” United

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Kingdom Ministry of Defence v. Trimble Navigation Ltd., 422 F.3d 165, 171 (4th
Cir. 2005)(internal quotations omitted). See Public Lands Council v. Babbitt, 167 F.3d 1287,
1314 (10th Cir. 1999)(Seymour, C.J.)(“In examining . . . [statutory] language, we assume that the
words chosen by Congress are employed in their ordinary sense and accurately express
Congress’ [ ] legislative purpose.”).
ANALYSIS
Carter may proceed in forma pauperis. While the Court has great reservations about the
conclusion of Harrell v. Fleming, 285 F.3d at 1293, in light of Irwin v. Department of Veterans
Affairs, 498 U.S. at 95-96, the Court is bound to faithfully apply the Tenth Circuit’s view that a
plaintiff’s failure to file a Privacy Act claim against the government within the Privacy Act’s
limitations period “deprives the court of subject matter jurisdiction,” Jackson v. Shinseki, 526 F.
App’x at 816 (citing Harrell v. Fleming, 285 F.3d at 1293-94). But for Irwin v. Department of
Veterans Affairs, 498 U.S. at 95-96, the Court would agree with the Tenth Circuit’s conclusion
in Harrell v. Fleming, 285 F.3d at 1293. In this case, the Court dismisses Carter’s Privacy Act
claims under rule 12(b)(1), because the Privacy Act’s statute of limitations imposes a
jurisdictional bar and Carter failed to file his Privacy Act claims within the limitations period.
I.

CARTER MAY PROCEED IN FORMA PAUPERIS.
The Court will grant Carter’s Application to proceed without prepaying fees or costs.

While a litigant need not be “absolutely destitute,” “an affidavit is sufficient which states that
one cannot because of his poverty pay or give security for the costs and still be able to provide
himself and dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. at 339. Carter signed an affidavit declaring that he is unable to pay the costs of these
proceedings, swearing that: (i) the income amount he expects to receive next month is $2,608.83

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in disability, see Application at 2; (ii) his average monthly expenses are $3,418.81, see
Application at 5; (iii) the value of his assets is $2,019.00, see Application at 3; (iv) his amount of
cash is fifty-five cents, and he has $2.55 in his Wells Fargo checking and savings account, see
Application at 2; and (iv) he is unemployed, see Application at 2. While he currently has assets
to cover the $400.00 filing fee, he is running a monthly deficit, suggesting that he will gradually
deplete these assets if they are liquid. If they are not really liquid the Court cannot consider that
as an available means to pay the filing fee. And while Carter is claiming the United States
Department of Veterans Affairs owes him $397,800.00, the Court finds no basis to conclude that
this sum is currently available for Carter to pay the filing fee. The Court concludes that Carter is
unable to pay the filing fee, because he is unemployed, his monthly expenses exceed his monthly
income, his assets will be depleted if they are liquid, and any amount he claims that the
Department of Veterans Affairs owes him is not helpful now. See Cedrins v. Shrestha, CIV 090262, 2009 WL 1312959, at *1 (D.N.M. Mar. 31, 2009)(Browning, J.). In Cedrins v. Shrestha,
the Court authorized the filing of Cedrins’ “complaint” without the payment of the filing fee,
because “Cedrins submitted an affidavit . . . [in which she alleged] that she is unemployed and
has no savings or other assets which she can use in the prosecution of this litigation.” 2009 WL
1312959, at *1. Similarly, the Court will allow Carter to proceed in forma pauperis based on the
statements in his affidavit.3

3

Although the Court will dismiss Carter’s complaint for lack of subject-matter
jurisdiction, see infra, the lack of jurisdiction does not prevent the Court from determining that
Carter may proceed in forma pauperis based on the statements in his affidavit. The Court may
grant a motion to proceed in forma pauperis even though the Court must later dismiss because,
for example, the complaint is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i); Buchheit v. Green,
705 F.3d at 1160-61 (“There is simply nothing in the language of the statute [regarding
proceedings in forma pauperis, 28 U.S.C. § 1915] indicating that such a dismissal must occur
before the grant of a motion to proceed [in forma pauperis].”); Oughton v. United States, 310
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II.

THE PRIVACY ACT’S STATUTE OF LIMITATIONS BARS CARTER’S
PRIVACY ACT CLAIMS
The Privacy Act’s two-year statute of limitations, 5 U.S.C. § 552a(g)(5), bars Carter’s

Privacy Act claims. On June 30, 2014, Carter discovered that McLaughlin had entered an
allegedly false medical history into Carter’s medical records.

See Complaint ¶ 13, at 5

(“Plaintiff further alleges that on June 30, 2014, Plaintiff discovered the alleged false medical
history had been entered in his medical records by PA McLaughlin . . . .”). The Privacy Act’s
statute of limitations began to run on that day. See, e.g., Bergman v. United States, 751 F.2d at
316 (10th Cir. 1984). See also, e.g., Lockett v. Potter, 259 F. App’x at 786-87 (“The Seventh,
Ninth, Tenth, and D.C. Circuits have held that the statute of limitations for a Privacy Act claim
begins to run when the plaintiff knows or has reason to know of the alleged violation.”)(internal
citations omitted). Carter filed his Privacy Act claims on July 6, 2016 -- more than two years
after Carter knew of the alleged violation. See Complaint ¶¶ 1-33, at 1-17. When, therefore,
Carter filed his Privacy Act claims on July 6, 2016, the Privacy Act’s statute of limitations had
run.
It remains for the Court to decide the legal effect that the running of the Privacy Act’s
F.2d at 804 (noting that in forma pauperis status may be granted before a complaint is dismissed
under 28 U.S.C. § 1915). See also Shapiro v. McManus, 136 S. Ct. 450, 455 (2015)(noting that
“‘wholly insubstantial and frivolous claims’ implicate” a federal court’s federal-question subjectmatter jurisdiction)(quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)). Moreover, “‘a federal
court always has jurisdiction to determine its own jurisdiction.’” Petrella v. Brownback, 697
F.3d 1285, 1292 (10th Cir. 2012)(quoting United States v. Ruiz, 536 U.S. 622, 627 (2002); Latu
v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004)(noting “inherent jurisdiction of Article III
federal courts to determine their jurisdiction”)). The Court necessarily may decide certain issues
raised, for example, by a motion to continue or a motion appoint counsel, which are necessary
for the Court to determine whether it has jurisdiction over the case. Accordingly, the Court will
allow Carter to proceed in forma pauperis and to file the Complaint. The Court then analyzes
Carter’s Complaint to determine whether the Court has jurisdiction to proceed.

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statute of limitations has on Carter’s Privacy Act claims. If, on the one hand, the Privacy Act’s
statute of limitations is jurisdictional, then the Court should sua sponte decide whether it has
jurisdiction to proceed. The Court must inquire into its jurisdiction sua sponte, because the
parties did not raise the issue of the Court’s subject-matter jurisdiction. See Tuck v. United
Servs. Auto. Ass’n, 859 F.2d 842, 844 (10th Cir. 1988)(determining that, if “the parties do not
raise the question of lack of jurisdiction, it is the duty of the federal court to determine the matter
sua sponte”). See also Answer at 5 (failing to raise a defense under rule 12(b)(1)). If, on the
other hand, the Privacy Act’s statute of limitations is an affirmative defense, then the Court
should consider whether the statute bars Carter’s claims pursuant to rule 12(b)(6) for failure to
state a claim upon which relief can be granted. See Torrez v. Eley, 378 F. App’x at 772
(determining that a “statutes of limitations bar . . . may be resolved on a Rule 12(b)(6) motion to
dismiss when the dates given in the complaint make clear that the right sued upon has been
extinguished”)(internal quotation marks and citation omitted).
In considering the legal effect of the running of the Privacy Act’s statute of limitations,
the Court considers the implications raised by the Supreme Court’s opinion in Irwin v.
Department of Veterans Affairs, which considered a limitations period in another statutory
context.

See 498 U.S. at 95-96.

In that case, the Supreme Court held that a rebuttable

presumption of equitable tolling applies to statutes of limitations that would otherwise bar suits
filed against the United States. See Irwin v. Department of Veterans Affairs, 498 U.S. at 95-96
(holding “that the same rebuttable presumption of equitable tolling applicable to suits against
private defendants should also apply to suits against the United States”).

Consequently, the

Supreme Court held that equitable tolling applied to 42 U.S.C. § 2000e-16(c), which required the
petitioner, Shirley Irwin, to file a complaint within thirty days of the Equal Employment

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Opportunity Commission’s decision.4
Justice White concurred in part, but did “not join the portion of the opinion holding that
the 30 day time period is subject to equitable tolling.” Irwin v. Department of Veterans Affairs,
498 U.S. at 97 (White, J., concurring in part). Justice White reasoned that “statutory deadlines
for suits against the Government, such as the one in this case, are conditions on the
Government’s waiver of sovereign immunity,” 498 U.S. at 97 (White, J., concurring in part),
and, therefore, “must be ‘strictly observed and exceptions thereto are not to be implied,’” 498
U.S. at 97 (White, J., concurring in part)(quoting Lehman v. Nakshian, 453 U.S. 156, 161
(1981)). As a result, Justice White declined to join the Supreme Court’s holding that equitable
tolling applied to 42 U.S.C. § 2000e-16(c), because “Congress did not expressly provide for
equitable tolling of the 30-day filing deadline in § 2000e-16(c).”

Irwin v. Department of

Veterans Affairs, 498 U.S. at 97 (White, J., concurring in part).

4

After the Supreme Court decided Irwin v. Department of Veterans Affairs, 498 U.S. 89,
Congress amended 42 U.S.C. § 2000e-16(c) to provide for a 90-day limitations period. See 42
U.S.C. § 2000e-16(c). The statute provides:
Within 90 days of receipt of notice of final action taken by a department, agency,
or unit referred to in subsection (a) of this section, or by the Equal Employment
Opportunity Commission upon an appeal from a decision or order of such
department, agency, or unit on a complaint of discrimination based on race, color,
religion, sex or national origin, brought pursuant to subsection (a) of this section,
Executive Order 11478 or any succeeding Executive orders, or after one hundred
and eighty days from the filing of the initial charge with the department, agency,
or unit or with the Equal Employment Opportunity Commission on appeal from a
decision or order of such department, agency, or unit until such time as final
action may be taken by a department, agency, or unit, an employee or applicant
for employment, if aggrieved by the final disposition of his complaint, or by the
failure to take final action on his complaint, may file a civil action as provided in
section 2000e-5 of this title, in which civil action the head of the department,
agency, or unit, as appropriate, shall be the defendant.
42 U.S.C. § 2000e-16(c).
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If the issue of equitable tolling of federal statutes of limitations were open, then the Court
would agree with Justice White’s reasoning that, unless Congress expressly provides for
equitable tolling in a waiver of sovereign immunity, it does not make sense to apply the judgemade doctrine of equitable tolling to statutes of limitations that otherwise bar suits filed against
the United States. See Irwin v. Department of Veterans Affairs, 498 U.S. at 97 (White, J.,
concurring in part). The Court recognizes, however, that the issue is not open. See Irwin v.
Department of Veterans Affairs, 498 U.S. at 95-96 (holding “that the same rebuttable
presumption of equitable tolling applicable to suits against private defendants should also apply
to suits against the United States”). Consequently, in light of Irwin v. Department of Veterans
Affairs, the Court agrees with the Ninth Circuit’s and the D.C. Circuit’s reasoning that it does
not make sense to treat the Privacy Act’s statute of limitations as a jurisdictional bar. See Rouse
v. U.S. Dep’t of State, 567 F.3d at 415; Chung v. U.S. Dep’t of Justice, 333 F.3d at 277). In
Rouse v. U.S. Dep’t of State, the Ninth Circuit explained why: (i) if the Privacy Act’s statute of
limitations is a jurisdictional bar, then the traditional defense of equitable tolling cannot apply,
see Rouse v. U.S. Dep’t of State, 567 F.3d at 415 (citing Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982)); (ii) but because “the Supreme Court announced [in Irwin v. Department
of Veterans Affairs] a ‘general rule’ that ‘the same rebuttable presumption of equitable tolling
applicable to suits against private defendants should also apply to suits against the United
States,’” see Rouse v. U.S. Dep’t of State, 567 F.3d at 415 (quoting Irwin v. Department of
Veterans Affairs, 498 U.S. at 95-96); (iii) therefore, because the Privacy Act’s statute of
limitations may be equitably tolled, it cannot be a categorically jurisdictional bar, see Rouse v.
U.S. Dep’t of State, 567 F.3d at 416 (citing Chung v. U.S. Dep’t of Justice, 333 F.3d at 277).
Notwithstanding the Court’s view that the Supreme Court’s analysis in Irwin v.

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Department of Veterans Affairs implies that the Privacy Act’s statute of limitations does not
impose a jurisdictional bar, the Court is bound to follow faithfully the Tenth Circuit’s view that a
plaintiff’s failure to file a Privacy Act claim against the United States within the Privacy Act’s
limitations period “deprives the court of subject matter jurisdiction.” Jackson v. Shinseki, 526 F.
App’x at 816 (citing Harrell v. Fleming, 285 F.3d at 1293-94). Accordingly, the Court dismisses
Carter’s Privacy Act claims pursuant to rule 12(b)(1) for lack of subject-matter jurisdiction,
according to the Tenth Circuit’s guidance in Jackson v. Shinseki, 526 F. App’x at 816, and
Harrell v. Fleming, 285 F.3d at 1293.5
IT IS ORDERED that: (i) the Plaintiff’s Application to Proceed in District Court
Without Prepaying Fees or Costs (Long Form), filed July 6, 2016 (Doc. 2), is granted; (ii) the
Plaintiff’s Complaint for Declaratory and Injunctive Relief; and for Damages under the U.S.
Privacy Act, filed July 6, 2016 (Doc. 1), is dismissed without prejudice.

5

The Court dismisses for lack of subject-matter jurisdiction and, hence, is without
jurisdiction to adjudicate the Defendants’ affirmative defense that the “Plaintiff’s claims are
barred based on his failure to timely exhaust [his] administrative remedies.” Answer at 5.
“[E]xhaustion of administrative remedies under the Privacy Act is not a jurisdictional
prerequisite.” Taylor v. U.S. Treasury Dept., 127 F.3d 470, 475 (5th Cir. 1997). See Wadhwa v.
Dep’t of Veterans Affairs, 342 F. App’x 860, 862-63 (3d Cir. 2009)(“We also disagree with the
District Court’s conclusion that it lacks jurisdiction to entertain Wadhwa’s claim under the
Privacy Act because Wadhwa failed to exhaust his administrative remedies. There is no
statutory requirement of exhaustion related to a request for access to records.”)(citing 5 U.S.C. §
552a(d)). Rather, under the Privacy Act, a complaint “‘that fails to allege the requisite
exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be
granted.’” McGee v. Fed. Bureau of Prisons, 118 F. App’x 471, 475 (10th Cir. 2004)(quoting
Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir. 2003)). Accordingly, the Court
will not determine the Defendants’ exhaustion-of-remedies defense, because the Court lacks
jurisdiction over Carter’s suit. See, e.g., Bell v. Hood, 327 U.S. at 682 (“Whether the complaint
states a cause of action on which relief could be granted is a question of law and just as issues of
fact it must be decided after and not before the court has assumed jurisdiction over the
controversy.”).
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________________________________
UNITED STATES DISTRICT JUDGE

Parties and counsel:
Terry Louis Carter
Las Cruces, New Mexico
Plaintiff pro se
Damon P. Martinez
United States Attorney
Michael H. Hoses
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for Defendants United States Department of Defense, United States Department of
the Air Force, and Mike O’Callaghan Federal Medical Center USAF 99th Medical Group

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