plaintiff knew or should have known of the alleged violation. See id.
Accordingly, even if the plaintiff actually found out about the violation
on January 8, 1999, as he contends, the court still may not have
subject-matter jurisdiction if the plaintiff should have known about the
violation prior to January 3, 1999 (two years before the complaint was
The defendant relies on various correspondence by the plaintiff which
demonstrates that he knew of the records about which he now complains.
For example, in the June 18th letter, the plaintiff stated that Mr.
Schiller referred to "certain alleged misconduct on my part prior to
leaving the Agency in '93 that would affect my return to work." See Mot.
to Dismiss, Ex. 5. Additionally, the defendant also points to the
plaintiffs complaint, in which he states that "during the period June-July
1998, [Mr. Schiller], in various letters and verbally, made some comments
that I had engaged in threats, stalking, and battery he claimed was in
1993. . . ." Compl. at 5-6. The defendant concludes that as a result of
these documents, "[a]t minimum, plaintiff was put on notice at this time
that the agency had information regarding allegations of misconduct."
Mot. to Dismiss at 16, n. 10.
The defendant's argument is unpersuasive. The inquiry is not whether
the plaintiff was put on notice regarding the agency' s possession of
this "information." Even if the plaintiff knew about the agency's
knowledge of the alleged misconduct in 1993, as he apparently did, this
is not enough. The plaintiff needed to know, or should have known, about
a potential violation by the defendant, such as the alleged
record-keeping in violation of the Privacy Act.
In this regard, neither party has adequately addressed the issue.
Because the statute of limitations is jurisdictional, see Griffin, 192
F.3d at 1082, however, the court is not limited to the party's arguments
or pleadings and "may consider such materials outside the pleadings as it
deems appropriate" to ensure that it has jurisdiction. See Herbert, 974
F.2d at 197.
The key document that sheds light on this inquiry is the letter from
Mr. Hill to the plaintiff dated June 5, 1998. In that letter, while
discussing back pay and other personnel matters, Mr. Hill stated that
"[c]oncerning return to status quo ante, [Mr. Schiller] informed you that
his attention has been called to certain documents which cause concern
regarding your conduct around the time of your resignation." Compl.App.
at 18-19 (emphasis added).
This case is analogous to Bowyer v. United States Dep't of the Air
Force, 875 F.2d 632 (7th Cir. 1989). In Bowyer, the plaintiff learned of
an alleged Privacy Act violation from another worker. See id. at 636.
When the plaintiff asked if his coworker saw any files related to a
confrontation with a superior, the coworker responded "I am sure that
there was one in there." Id. The court held this statement, by itself, to
be sufficient to trigger the statute of limitations because the plaintiff
knew, or had reason to know, of the alleged erroneous record. See id.
Similarly, in this case, the defendant specifically told the plaintiff
in the June 5, 1998 letter that the defendant was keeping certain
documents on him regarding the plaintiffs alleged misconduct. See Compl.
App. at 18-19. In addition, the plaintiff and Mr. Schiller had repeatedly
discussed the incident at previous times. Mr. Schiller originally
disclosed his concern regarding the alleged misconduct in his letter to
the plaintiff on May 26, 1998. See id. at 12-13. Moreover, on two
occasions after the May 26th letter, the plaintiff vigorously denied Mr.
Schiller's allegations. See id. at 14, 15-17. The key point here is that
whether or not the allegations were true, the plaintiff does not dispute
NASA official specifically told him — via the June 5, 1998 letter
— that NASA was keeping certain documents on him regarding his
alleged misconduct. See id. at 18-19.
In light of the foregoing, the court concludes that the plaintiff
knew, or should have known, by June 5, 1998, that the defendant kept
records on him that he believed to be erroneous. The plaintiff filed his
complaint on January 3, 2001. Accordingly, the plaintiff failed to
satisfy the Privacy Act's two-year statute of limitations, see
5 U.S.C. § 552a(g)(5), and the court must dismiss the complaint for
lack of subject-matter jurisdiction pursuant to Federal Rule of Civil
For all these reasons, the court grants the defendant's motion to
dismiss. An order directing the parties in a manner consistent with this
Memorandum Opinion is separately and contemporaneously issued this 5th
day of November, 2001.