The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, United States District Judge.
Plaintiff Edward Spannaus brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking access to Federal Bureau of Investigation (FBI) records pertaining to Gregory F. Rose and eleven named organizations. Defendant has moved to dismiss on the ground that this suit is time-barred. Whether a FOIA action is in fact governed by a statute of limitations appears to be a question of first impression. For the reasons set forth below, the Court concludes that plaintiff's suit is untimely and must be dismissed.
This case grows out of two FOIA requests submitted by plaintiff in September, 1977. In the first, plaintiff sought, by letter dated September 20, 1977, all FBI records concerning Gregory F. Rose, an alleged paid FBI informant. The second, submitted September 21, sought all files in the FBI's New York field office pertaining to eleven organizations: the National Caucus of Labor Committees, the U.S. Labor Party, the Fusion Energy Foundation, the Labor Organizers Defense Fund, the Campaigner Publications, the New Solidarity International Press Service, the Committee to Elect Lyndon LaRouche, the Revolutionary Youth Movement, the National Unemployed and Welfare Rights Organization, the New York Labor Committee, and the New York SDS Labor Committee. The FBI's New York field office acknowledged receipt of both requests on October 5, 1977, and advised plaintiff that it was forwarding them to FBI Headquarters, where most of the investigative files he sought were located.
The New York office, however, continued processing those documents responsive to plaintiff's September 21 request which had not been removed to FBI Headquarters, and, on October 19, informed him that it had located eleven such documents. It withheld ten of these in their entirety, and released only a portion of the eleventh. Plaintiff appealed that decision administratively on October 28, 1977. Fifteen months later, on January 19, 1979, the Office of Information and Privacy Appeals ("OIPA") released an additional 137 pages from the eleven responsive documents and affirmed the remainder of the withholdings.
FBI Headquarters responded to plaintiff's request concerning Gregory F. Rose on November 22, 1977, advising him that the materials he sought were protected under the Privacy Act and would not be released. Plaintiff appealed that decision administratively, and OIPA affirmed the denial of his request in February, 1978. With respect to that portion of his September 21 request which had been forwarded to FBI Headquarters, plaintiff received his first response on January 30, 1979. The agency informed him that it was denying his request in part. It subsequently released 2,690 pages on June 14, 1979 and withheld another 2,667. Plaintiff again sought administrative review of this decision and also challenged the adequacy of the agency's search. His appeal was denied on August 15, 1979.
In 1975, persons and organizations associated with Lyndon H. LaRouche filed suit against the FBI in the Southern District of New York, alleging violations of their civil and constitutional rights. Lyndon H. LaRouche v. William H. Webster, 566 F. Supp. 415 (S.D.N.Y.1983). Plaintiffs in that case sought to amend their complaint in April, 1982, to include the FOIA claims now before this Court. The New York District Court denied that motion in October, 1984, dismissing the FOIA claims without prejudice. Plaintiff filed the present suit on July 26, 1985.
FOIA itself does not expressly provide a statute of limitations governing suits brought under it. Section 2401(a) of title 28, however, states, in relevant part, that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues . . . ." 28 U.S.C. § 2401(a). Unlike general statutes of limitations, however, section 2401(a) is not merely a procedural requirement; it is a condition attached to the sovereign's consent to be sued and, like all waivers of sovereign immunity, must be strictly construed. See Soriano v. United States, 352 U.S. 270, 276, 1 L. Ed. 2d 306, 77 S. Ct. 269 (1957); Kreiger v. United States, 539 F.2d 317, 320-21 (3d Cir. 1976). Accordingly, strict compliance with this statute of limitations is a jurisdictional prerequisite to suit that can neither be waived by the government, Walters v. Secretary of Defense, 233 U.S. App. D.C. 148, 725 F.2d 107, 112 n.12 (D.C. Cir. 1983), nor relaxed by the courts for equitable considerations, Anderberg v. United States, 718 F.2d 976, 977 (10th Cir. 1983) (applying section 2401(b)), cert. denied, 466 U.S. 939, 80 L. Ed. 2d 463, 104 S. Ct. 1916 (1984); Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981) (applying section 2401(b)).
The "right of action" to which section 2401(a) refers is "not the right to administrative action but the right to file a civil action in the courts against the United States." Crown Coat Front Co. v. United States, 386 U.S. 503, 511, 18 L. Ed. 2d 256, 87 S. Ct. 1177 (1967). Such a right accrues when "the right to resort to federal court [is] perfected." Impro Products, Inc. v. Block, 232 U.S. App. D.C. 359, 722 F.2d 845, 850 (D.C. Cir. 1983) (quoting Oppenheim v. Campbell, 187 U.S. App. D.C. 226, 571 F.2d 660, 662 (D.C. Cir. 1978)), cert. denied, 469 U.S. 931, 105 S. Ct. 327, 83 L. Ed. 2d 264 (1984); see also United States v. Sams, 521 F.2d 421, 429 (3d Cir. 1975) (claim first accrues when claimant entitled to institute an action). FOIA itself provides that a right to judicial review accrues when a requester has constructively exhausted his or her administrative remedies. It states that "any person making a request to any agency for records . . . shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph." 5 U.S.C. § 552(a)(6)(C) (emphasis supplied). The applicable time limit requires agencies to determine within ten working days after receipt of the request whether to comply with the request. 5 U.S.C. § 552(a)(6)(A)(i). Here, plaintiff's requests were dated September 20 and 21, 1977. The FBI's first determination with respect to either was made on October 19, 1977. Even assuming the requests were delayed in the mails a week, the ten working-day response period had run by the time of the agency's first determination.
Thus, by mid-October, 1977, plaintiff's cause of action had accrued and the statute of limitations began to run. This case was filed July, 1985, nearly two years after the statute had expired. Defendant contends it must therefore be dismissed as time-barred.
In his opposition plaintiff raises essentially three arguments. First, he contends that applying section 2401(a) to FOIA actions is inconsistent with the spirit and purpose of the Act, and is, in any event, futile. Second, he claims that the statute of limitations is inapplicable to a case such as this, which is purely equitable in nature. Third, he argues that, even if the statute does apply, it was tolled by the filing of his FOIA claims in the New York suit or, alternatively, by the administrative appeals undertaken by the agency itself.
Although section 2401(a), by its own terms, applies to " every civil action commenced against the United States," 28 U.S.C. § 2401(a) (emphasis supplied), plaintiff argues that this language is not to be taken literally, pointing to the fact that courts have not applied the statute to habeas corpus petitions. In response, defendant notes that while section 2401(a) has never been used to bar a habeas action, see Walters v. Secretary of Defense, 725 F.2d at 113, neither the Walters court nor plaintiff cite any case in which the applicability of section 2401(a) was even discussed, let alone decided, in the context of a habeas petition. More importantly, defendant argues that the interests of a plaintiff in a FOIA action seeking government documents simply cannot be compared to those of prisoners "incarcerated in flagrant violation of their constitutional rights." Pennsylvania, ex rel. Herman v. Claudy, 350 U.S. 116, 123, 100 L. Ed. 126, 76 S. Ct. 223 (1956). Indeed, in holding that section 2401(a) applied to a corrective action brought by a dishonorably discharged marine, the Walters court rejected the district court's analogy between corrective actions and habeas petitions, stating that such a comparison "fail[ed] to give adequate consideration both to the unique constitutional status of the Great Writ, and to the weighty policies behind . . . section 2401(a) . . . ." Walters, 725 F.2d at 113 (footnote omitted). Consideration of those same factors here makes clear that the habeas exception to section 2401(a)'s otherwise all encompassing reach is an extremely narrow one, dictated by the unique constitutional values at stake in a habeas petition, and that no comparable constitutional interests support an expansion of this exception to include FOIA actions.
Plaintiff next notes that statutes of limitations are statutes of repose, designed to prevent the unfairness to defendants that can result from the passage of time. Such a statute has no place in a FOIA action, he claims, since there is no concern that memories will have faded or that witnesses will have disappeared in such a lawsuit. Whether or not plaintiff's contention is true as a factual matter -- and defendant claims it is not -- section 2401(a) is not, as plaintiff suggests, merely a statute of repose. Rather, it is a condition attached to the government's waiver of sovereign immunity and, as such, is a jurisdictional prerequisite to suit. Thus, even if this Court agreed that, as a theoretical matter, section ...