Amit P. Mehta, United States District Judge.
In November 2003, Plaintiff Maria Agelli entered into a confidential Memorandum
The primary question this case presents is whether Plaintiff timely filed her suit under the Privacy Act. The Act provides a two-year limitations period that commences when the plaintiff knows or should have known of the alleged violation. Here, the court concludes that Plaintiff knew or should have known about NIH's failure to destroy the 2003 negative performance review more than two years before she filed suit. Accordingly, the court grants Defendant's Motion for Summary Judgment and enters judgment in favor of Defendant.
Plaintiff Maria Agelli is a physician epidemiologist, employed as a Medical Officer at NIH's National Cancer Institute ("Cancer Institute"). Compl., ECF No. 1, ¶ 15; Aff. of Dr. Maria Agelli, ECF No. 12-2 [hereinafter Agelli Aff.], ¶ 3. Plaintiff began working at NIH in 2001 as an employee of the Cancer Institute's Cancer Training Branch. Agelli Aff. ¶ 4. In 2002, Dr. Carolyn Strete became Plaintiff's supervisor. Id. ¶¶ 12-14. Conflicts quickly arose between Plaintiff and Dr. Strete. Id. ¶¶ 13-16.
The following year, in September 2003, Dr. Strete drafted a highly critical performance evaluation of Plaintiff in which Dr. Strete recommended that Plaintiff be transferred to another component of NIH (the "2003 Performance Review"). Id. ¶ 18; Def.'s Mot. to Dismiss or, in the Alter., for Summ. J. [hereinafter Def.'s Mot.], Ex. 1, ECF No. 7-2 [hereinafter MOU]. In response, Plaintiff filed an EEO complaint alleging that the 2003 Performance Review was the product of discrimination based on her sex and national origin. Agelli Aff. ¶ 22.
In November 2003, Plaintiff and NIH resolved her discrimination complaint by entering into a confidential Memorandum of Understanding (MOU). Id. ¶ 33. As part of the MOU, NIH agreed to assign Plaintiff to another component of NIH for one year. Def.'s Mot., Ex. 1 at 1. It also agreed that the Cancer Institute "will use the interim 2003 performance evaluation mutually agreed upon in the latest revision." Id. And, most importantly for present purposes, NIH agreed that the Cancer Institute would not "retain any written record of negative comments in any personnel folder." Id. In other words, NIH agreed to remove the 2003 Performance Review from Plaintiff's personnel file.
Move the calendar forward almost nine years to the fall of 2012. Plaintiff had filed a new EEO complaint, which was pending before the Equal Employment Opportunity Commission. Def.'s Mot., Ex. 3. On October 2, 2012, Plaintiff received documents from NIH relating to her new EEO complaint. Agelli Aff. ¶¶ 42, 45. Among those records was an email dated January 2005 from Dr. Strete to Dr. Ernie Hawk, who
The Strete Email evidenced a clear violation of the MOU. Attached to the Email was Plaintiff's 2003 Performance Review, which NIH was supposed to have destroyed under the terms of the MOU. Def.'s Mot., Ex. 1. Moreover, the Email showed Dr. Strete sharing the 2003 Performance Evaluation with another NIH colleague, Dr. Hawk. In the text of the email, Dr. Strete wrote that her "comments [in the 2003 Performance Review] were significantly watered down by [another NIH official] and those went to [Plaintiff's] official files. Therefore, I assume these" — meaning the 2003 Performance Review comments — "are dead. I am only sending these to you so that you can see her through my eyes. Obviously this is confidential." Id. at 1.
The precise date on which Plaintiff actually saw the Strete Email, and learned of NIH's violation of the MOU, is in dispute. Following her discovery of the Strete Email, Plaintiff wrote two letters to Debra Chew, the Director of NIH's EEO office. In the first letter, dated October 11, 2012 ("October 11th Letter"), referring to her discovery of the Strete Email, Plaintiff wrote:
Def.'s Mot., Ex. 3, ECF No. 7-4 (emphasis added).
On January 3, 2013, Plaintiff again wrote to Chew (the "January 3rd Letter"), apparently because Chew had not responded to the October 11th Letter. Def.'s Reply, Ex. 6, ECF No. 13-1. In the January 3rd Letter, Plaintiff reiterated that she had discovered the Strete Email on October 2, 2012. In the first line of that letter, she wrote: "With my October 11, 2012 letter, I informed you that on October 2, 2012, I learned that NCI management has affirmatively failed to comply with the agreement they had reached with me through a [MOU] on November 2003." Id. (emphasis added).
Notwithstanding the fact that the October 11th and January 3rd Letters both clearly state that Plaintiff learned about the Strete Email on October 2, 2012, Plaintiff now claims otherwise. In a sworn affidavit, Plaintiff attests that she received — but did not review — the documents from NIH on October 2, 2012. Agelli Aff. ¶ 41. She did not actually review, and therefore discover, the Strete Email, Plaintiff attests, until October 11, 2012 — the day she wrote Chew. Id. ¶¶ 46, 50 ("I saw the document in question on October 11, 2012, for the first time.... It was at about 2 AM on October 11, 2012, when I found [the Strete Email] among hundreds of unrelated document pages.").
Plaintiff filed her Complaint pro se — she later retained counsel — on October 14, 2014. Compl. at 1. She sought damages solely under the Privacy Act of 1974, 5 U.S.C. § 552a. Id. at 21-22.
The sole named Defendant — Secretary of the U.S. Department of Health and Human Services (HHS) Sylvia M. Burwell, sued in her official capacity — then moved to dismiss or, in the alternative, for summary judgment on three grounds: (1) she is not a proper defendant, as the Privacy Act only permits suit against the agency itself;
Because the parties have submitted sworn affidavits and other evidence "outside the pleadings," Federal Rule of Civil Procedure 12(d) requires the court to treat Defendant's motion not as one to dismiss for failure to state a claim under Rule 12(b)(6), but as one for summary judgment under Rule 56.
The Privacy Act requires, among other things, that governmental agencies "maintain accurate records and safeguard[] individuals from capricious dissemination of personal information by the government." Tijerina v. Walters, 821 F.2d 789, 793 (D.C.Cir.1987). The Act's "principal enforcement mechanism" provides for civil remedies for those who are aggrieved. Id. at 793. Under subsection (g)(1)(C), a person may bring a civil suit whenever any agency
5 U.S.C. § 552a(g)(1)(C). Under subsection (g)(1)(D), a person also may bring suit if the agency fails to comply with the Act or any regulation promulgated thereunder, "in such a way as to have an adverse effect on an individual." Id. § 552a(g)(1)(D). The Privacy Act generally provides that "[a]n action to enforce any liability created under this section" must be brought "within two years from the date on which the cause of action arises." Id. § 552a(g)(5).
Here, Defendant asserts that Plaintiff's suit was untimely because she filed it on October 14, 2014 — more than two years after October 2, 2012, when she received the Strete Email from NIH. Def.'s Mot. at 5-7; Def.'s Reply at 5-6. Plaintiff, on the other hand, argues that she timely filed suit, or at least that there is a genuine dispute of material fact as to the timeliness of her filing. Plaintiff contends that because she actually read the Strete Email for the first time on October 11, 2012, her Privacy Act claim began to accrue on that date, not nine days earlier on October 2, 2012, when she received the files from NIH. Plaintiff's Complaint was timely filed on October 14, 2014, she reasons, because October 11, 2014 — two years after her actual discovery of the Strete Email — was a Saturday, and the following Monday, October 13, 2014, was Columbus Day — an official court holiday. Pl.'s Opp'n at 16-19. Thus, Plaintiff claims, she timely filed her suit on October 14, 2014, the first business day after Saturday, October 11, 2014. Pl.'s Opp'n at 16-19. The court disagrees.
As Defendant correctly point outs, numerous cases from this jurisdiction hold that a cause of action arises under the Privacy Act — and the limitations period starts to run — when the plaintiff receives a copy of the allegedly offending record. In Ciralsky v. CIA, 689 F.Supp.2d 141, 158 (D.D.C.2010), the court found that the "statute of limitations ... was triggered" on July 6, 1998, when the CIA "passed"
In this case, Plaintiff concedes that she received the Strete Email from NIH on October 2, 2014. Agelli Aff. ¶ 35. Thus, on that date, the limitations period on her Privacy Act claim began to accrue. Her lawsuit, filed two years and twelve days after she received the Strete Email, therefore was untimely.
Plaintiff's primary response to this straightforward limitations analysis is that, because she has attested that she read the Strete Email for the first time on October 11, 2012 — not on October 2, 2012 — her sworn affidavit creates a genuine dispute of material fact about the date of accrual that precludes the grant of summary judgment. Pl.'s Opp'n at 19. But that argument is misplaced. The law in this Circuit has long been clear 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." Tijerina, 821 F.2d at 798 (emphasis added).
Further, even if Plaintiff's actual knowledge of the alleged violation were the trigger for the start of the limitations period, no reasonable trier of fact could conclude that the period commenced on any date other than October 2, 2014. Plaintiff wrote two letters to NIH — the October 11th Letter and the January 3rd Letter — both of which unequivocally state that she first learned of the Strete Email on October 2, 2012. In the October 11th Letter she wrote that she discovered the Email "on October 2, 2012, while examining documents produced by the agency." Def.'s Mot., Ex. 3 (emphasis added). In the January 3rd Letter, she wrote: "With my October 11, 2012 letter, I informed you that on October 2, 2012, I learned that NCI" had failed to comply with the MOU. Def.'s Reply, Ex. 6 (emphasis added). These two contemporaneous records written by Plaintiff establish that she had actual knowledge of the alleged violation on October 2, 2012.
Plaintiff's self-serving affidavit cannot, without more, create a genuine dispute of material fact as to when she learned of the Strete Email. The Court of Appeals has instructed that "[j]udges may, under certain circumstances, lawfully put aside testimony that [has been] so undermined as to be incredible." Johnson v. Wash. Metro. Area Trans. Auth., 883 F.2d 125, 128 (D.C.Cir.1989). "The removal of a factual question from the jury is most likely when a plaintiff's claim is supported solely by the plaintiff's own self-serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately committed perjury." Id.; see also Carranza v. Fraas, 820 F.Supp.2d 118, 124 (D.D.C.2011) ("Summary judgment is appropriate when a plaintiff's claim is supported by only her own self-serving affidavit and is undermined by other evidence."). So it is here. Plaintiff offers nothing other than her own uncorroborated affidavit to establish October 11, 2012, as the date on which she first reviewed the Strete Email — a contention that is flatly contradicted by the October 11th and January 3rd Letters. Plaintiff cannot avoid summary judgment based on her self-serving affidavit alone.
Plaintiff also seems to contend that her Privacy Act claim should not be barred by the statute of limitations because the Strete Email was located among hundreds, if not thousands, of pages produced to her by NIH. Agelli Aff. ¶ 45. But Plaintiff has not offered any evidence, or made any argument, see Pl.'s Opp'n at 17-19, that would support a theory of equitable tolling or equitable estoppel to delay the start of limitations period, see Chung v. DOJ, 333 F.3d 273, 278-79 (D.C.Cir.2003). The court therefore must conclude that Plaintiff's Privacy Act claim is barred because she failed to bring it within the applicable two-year statute of limitations.
For the foregoing reasons, Defendant's Motion for Summary Judgment is granted. A separate Order accompanies this Memorandum Opinion.