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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2002 Decided July 8, 2003
No. 01-5365
JOHNNY CHUNG,
APPELLANT
v.
U.S. DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01912)
Larry Klayman argued the cause and filed the briefs for
appellant.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Roscoe C. Howard Jr., U.S. Attorney, and Mark B. Stern,
Attorney, Department of Justice. Dana J. Martin, Attorney,
Department of Justice, entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Johnny Chung appeals a judgment
dismissing his complaint against the Department of Justice
for violation of the Privacy Act, 5 U.S.C. § 552a(b), and
against DOJ officials for violation of his constitutional rights.
We affirm the dismissal of Chung’s constitutional claims
because, as the district court correctly held, they are encom-
passed within the remedial scheme of the Privacy Act. See
Chung v. Dep’t of Justice, No. 00–CV–1912, slip op. at 17–26
(D.D.C. Sept. 20, 2001) (citing Spagnola v. Mathis, 859 F.2d
223, 228 (D.C. Cir. 1988) (en banc) (per curiam)). In this
opinion, we consider whether a court may, for equitable
reasons, toll the two-year limitations period in the Privacy
Act. Because we conclude that it may, we vacate in part the
judgment of the district court and remand the case for
further proceedings.
I. Background
Chung, a Taiwanese businessman and a favorite of political
fundraisers, pleaded guilty in 1998 to making illegal campaign
contributions to the Democratic Party. Hoping for a reduced
sentence, Chung agreed to cooperate with prosecutors in a
broader investigation into violations of the federal election
laws by agents of the Chinese government. But Chung’s
involvement in that supposedly secret probe was stymied by
reports in the press. First The New York Times revealed
that Chung was assisting prosecutors and had fingered a
Chinese military man as the source of campaign contributions
to the Democrats — a leak that caused the FBI to spirit
Chung and his family into hiding. Then NBC News reported
that Chung was ‘‘somewhere in California, worried about
retaliation from the Chinese military.’’ Chung claims the
leaks prompted the Chinese government to send ‘‘hit squads’’
after him and his family.
Chung filed suit against the Department of Justice and five
unnamed ‘‘high-ranking DOJ officials,’’ accusing the defen-
3
dants of leaking the information in the Times article and the
NBC report. He sought damages under the Privacy Act and
under the Constitution of the United States. In the ruling
under review, the district court granted the Government’s
motion to dismiss, finding that Chung’s Privacy Act claim was
time-barred and that, because the Privacy Act provides a
comprehensive remedial scheme for harm caused by govern-
mental disclosure of personal information, it was inappropri-
ate for a court to imply a constitutional remedy for such
disclosure under Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Chung
appeals both aspects of the district court’s ruling, but only
our resolution of his Privacy Act issue merits treatment in a
published opinion.
II. Analysis
Section 552a(b) of the Privacy Act, with certain exceptions
not relevant here, prohibits a federal agency from releasing
information about a person without his consent. 5 U.S.C.
§ 552a(b). The Act further provides:
An action to enforce any liability created under this
section may be brought TTT within two years from the
date on which the cause of action arises, except that
where an agency has materially and willfully misrepre-
sented any information required under this section to be
disclosed to an individual and the information so misrep-
resented is material to the establishment of the liability
of the agency TTT the action may be brought at any time
within two years after discovery TTT of the misrepresen-
tation.
5 U.S.C. § 552a(g)(5).
The parties agree Chung’s claim arose in May 1998 when
the press reports containing leaked information appeared.
Chung did not file his lawsuit until August 2000, a little more
than two months after the two-year deadline in the Privacy
Act. We must decide whether Chung’s failure to meet the
statutory filing deadline can (and, if so, should) be excused, as
Chung claims, because he could not sue the Government,
4
without jeopardizing his bid for leniency, until after he was
sentenced in December 1998.
A. Equitable tolling of the Privacy Act limitation
In litigation between private parties, courts have long
invoked waiver, estoppel, and equitable tolling to ameliorate
the inequities that can arise from strict application of a
statute of limitations. See Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 95 (1990). The applicability of those
doctrines in suits against the United States, however, has
been complicated by the sovereign immunity of the defendant.
At 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. See, e.g., Action on
Smoking & Health v. C.A.B., 724 F.2d 211, 225 (D.C. Cir.
1984) (‘‘Courts have consistently held that a statutory time
limitation is an integral condition of the sovereign’s consent.
Compliance with that condition is a prerequisite to jurisdic-
tion’’); Soriano v. United States, 352 U.S. 270, 276 (1957)
(‘‘Congress was entitled to assume that the limitation period
it prescribed meant just that period and no more’’).
Prior to 1990 the Supreme Court had not spoken consis-
tently to the issue — a failing the Court sought to remedy in
Irwin. That case involved the provision of Title VII of the
Civil Rights Act of 1964 that allows an aggrieved employee to
file suit ‘‘[w]ithin thirty days of receipt of notice of final action
taken by TTT the Equal Employment Opportunity Commis-
sion.’’ 42 U.S.C. § 2000e–16(c). The Fifth Circuit had found
the limitation jurisdictional insofar as it applied to suits
against the Government and held that the district court
lacked authority to consider the petitioner’s equitable claims.
498 U.S. at 93. After noting the tension among its previous
holdings, and expressing its dissatisfaction with the ‘‘unpred-
ictability’’ inherent in an ‘‘ad hoc’’ approach, the Court an-
nounced a ‘‘general rule to govern the applicability of equita-
ble tolling in suits against the Government,’’ namely, that ‘‘the
same rebuttable presumption of equitable tolling applicable to
suits against private defendants should also apply to suits
against the United States.’’ Id. at 95.
5
As a guarantor of predictability, the Irwin presumption has
its shortcomings. The Court reasoned that the Congress,
legislating against the backdrop of private litigation, should
be presumed to have included equitable tolling as a compo-
nent of its waiver of sovereign immunity. The question
necessarily arises, therefore, whether the Court intended to
limit its ‘‘general rule’’ to statutes, such as Title VII, under
which both private and governmental parties may be liable.
The district court thought so, Chung, slip op. at 9, and the
Government urges that point upon us here. See also Becton
Dickinson & Co. v. Wolckenhauer, 215 F.3d 340, 349 (3d Cir.
2000) (‘‘ ‘making the rule of equitable tolling applicable to
suits against the Government, in the same way that it is
applicable to private suits’ has no meaning in the context of a
statute that creates only a cause of action against the govern-
ment’’).
We think that too narrow a reading of Irwin. Because
much litigation against the Government arises under statutes
that do not apply to private parties, a rule that excluded such
litigation would hardly be a ‘‘general rule to govern TTT suits
against the Government.’’ Although the Court pointed out
that ‘‘[t]ime requirements in lawsuits between private liti-
gants are customarily subject to ‘equitable tolling,’ ’’ 498 U.S.
at 95, we do not believe it thereby intended to make the
presumption it was announcing contingent upon the presence
of a parallel cause of action against a private party in the
statute at issue. Rather, we believe the Court meant simply
that it is reasonable to presume the Congress, unless it said
otherwise, expected the Government to face equitable tolling
in litigation because equitable tolling is a traditional feature of
the procedural landscape. Cf. United States v. Texas, 507
U.S. 529, 534 (1993) (citing ‘‘presumption favoring the reten-
tion of long-established and familiar principles, except when a
statutory purpose to the contrary is evident’’). We take the
Court at its word when it said it was announcing a ‘‘general
rule’’ establishing a presumption in favor of equitable tolling
in ‘‘suits against the Government,’’ subject to one qualification
to which the Court alluded in a subsequent case.
6
In United States v. Brockamp, the Court — before assess-
ing whether the Government had rebutted the presumption in
favor of equitable tolling — assumed, ‘‘for argument’s sake,
that a tax refund suit and a private suit for restitution are
sufficiently similar to warrant’’ the presumption in the first
place. 519 U.S. 347, 350 (1997). With that assumption, the
Court suggested that the type of litigation at issue must not
be so peculiarly governmental that there is no basis for
assuming customary ground rules apply. The ‘‘similarity’’
inquiry of Brockamp, however, must be conducted at a fairly
high level of generality if we are not to undermine the Court’s
goal in Irwin of simplifying the equitable tolling issue; the
question we ask, therefore, is not whether the elements of,
and remedies available in, the action against the Government
mimic those of a private claim, but whether the injury to be
redressed is of a type familiar to private litigation. See Brice
v. Sec’y of Health & Human Servs., 240 F.3d 1367, 1372 (Fed.
Cir. 2001) (‘‘a claim under the Vaccine Act is similar to a
traditional tort claim in the sense that it seeks monetary
recovery from an injury that traditionally was redressed by
tort law’’). A petition for review of an informal agency
rulemaking would not likely meet the test; a claim to recover
damages caused by the Government’s unwarranted disclosure
of personal information does. See id.; cf. Restatement (Sec-
ond) of Torts § 652D (1977) (‘‘Publicity Given to Private
Life’’). We conclude, therefore, that a Privacy Act claim for
unlawful disclosure of personal information is sufficiently
similar to a traditional tort claim for invasion of privacy to
render the Irwin presumption applicable.
Having determined that Irwin’s ‘‘rebuttable presumption’’
in favor of equitable tolling applies to this action under the
Privacy Act, we turn to the question whether that presump-
tion has been rebutted by the Government. Or, as the
Supreme Court phrased the question in Brockamp: ‘‘Is there
good reason to believe that Congress did not want the
equitable tolling doctrine to apply?’’ 519 U.S. at 350 (empha-
sis in original). The Government says yes. It reasons that
because the limitations period is by the statute tolled under
specified circumstances — when ‘‘an agency has materially
7
and willfully misrepresented any information required under
this section to be disclosed,’’ 5 U.S.C. § 552a(g)(5) — the
Congress has ‘‘already effectively allowed for equitable toll-
ing,’’ United States v. Beggerly, 524 U.S. 38, 48 (1998), and
should not be presumed to have intended more than it
provided.
That there is an express provision in the statute for tolling
is, to be sure, a factor that weighs against tolling for any
reason not specified in the statute. 524 U.S. at 48. But
neither the Supreme Court nor any other court has deemed
that negative implication alone sufficient to defeat the pre-
sumption established in Irwin. In Brockamp, the plaintiff’s
claim was defeated by a combination of factors: the statute’s
‘‘detail, its technical language, the iteration of the limitations
in both procedural and substantive forms, and the explicit
listing of exceptions, taken together,’’ as well as the Court’s
concern that excusing late-filed tax refund claims for equita-
ble reasons ‘‘could create serious administrative problems.’’
519 U.S. at 352. In Beggerly, which involved the Quiet Title
Act, the Court refused to allow equitable tolling in light of the
‘‘special importance’’ of repose in the area of real property
rights. 524 U.S. at 48–49.
The additional factors present in Brockamp and Beggerly
are conspicuously absent from this case. Section 552a(g)(5) is
phrased much like an ordinary statute of limitations, not as
part of a technical timing scheme with substantive implica-
tions. There is no threat of administrative havoc, nor any
heightened need for repose. In the absence of those or any
other reason for which it would be inconsistent with congres-
sional intent equitably to toll the Privacy Act, we conclude
that the Government has not overcome the Irwin presump-
tion.*
* In Griffin v. United States Parole Comm’n, 192 F.3d 1081, 1082
(D.C. Cir. 1999) (per curiam), the panel stated in its summary
disposition that the limitation period in the Privacy Act is ‘‘jurisdic-
tional.’’ It did so, however, without considering Irwin, and for that
reason is overruled. Our resolution of this issue has been approved
8
B. Equitable tolling on the facts of this case
Finally, we turn to the question whether Chung has pre-
sented a sufficient excuse for his failure to file suit within two
years of the time his cause of action arose. Chung’s plea
agreement required him to ‘‘cooperate fully with federal law
enforcement authorities’’ and granted prosecutors broad dis-
cretion to decide whether, in return, to ask the district court
to reduce his sentence. Chung claims that by virtue of that
agreement ‘‘[h]e was at the mercy of the subjective opinion of
the very government agency that violated his rights secured
by the Privacy Act.’’ Upon the assumption that prosecutors
would have viewed a lawsuit against the Department of
Justice as a failure to ‘‘cooperate fully,’’ Chung argues he was
‘‘prevented by a superior power’’ from filing suit until he was
sentenced in December 1998. We review de novo the district
court’s rejection of Chung’s argument. See United States v.
Saro, 252 F.3d 449, 455 n.9 (D.C. Cir. 2001) (‘‘we employ de
novo review when a district court holds — as the court
appears to have done here — that the facts cannot justify
equitable tolling as a matter of law’’).
In evaluating a claim for equitable relief from a statute of
limitations, we must be careful to distinguish between the two
primary tolling doctrines. See Currier v. Radio Free Europe,
159 F.3d 1363, 1367 (D.C. Cir. 1999); Cada v. Baxter Health-
care Corp., 920 F.2d 446, 450–52 (7th Cir. 1991). ‘‘Equitable
estoppel’’ precludes a defendant, because of his own inequita-
ble conduct — such as promising not to raise the statute of
limitations defense — from invoking the statute of limitations.
Currier, 159 F.3d at 1367; Cada, 920 F.2d at 450–51. The
doctrine of ‘‘equitable tolling,’’ on the other hand, applies
most commonly when the plaintiff ‘‘despite all due diligence
TTT is unable to obtain vital information bearing on the
existence of his claim.’’ Currier, 159 F.3d at 1367. We have
previously pointed out that the two doctrines, although func-
tionally similar, ‘‘have distinct criteria’’ — the former revolv-
ing around the conduct of the defendant and the latter around
by the entire court and thus constitutes the law of the circuit. See
Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981).
9
the circumstances of the plaintiff. Id. There is a difference
in effect as well: Equitable estoppel takes the statute of
limitations out of play for as long as is necessary to prevent
the defendant from benefitting from his misconduct, whilst
equitable tolling — as a method for adjusting the rights of
two ‘‘innocent parties’’ — merely ensures that the plaintiff is
not, by dint of circumstances beyond his control, deprived of a
‘‘reasonable time’’ in which to file suit. Cada, 920 F.2d at
452. See also Phillips v. Heine, 984 F.2d 489, 492 (D.C. Cir.
1993) (‘‘The purposes of the doctrine [of equitable tolling] are
fully achieved if the court extends the time for filing by a
reasonable period after the tolling circumstance is mended’’).
In this case the district court assumed for the sake of the
argument that the limitations period of the Privacy Act was
subject to adjustment for equitable reasons but refused to
grant relief: First, it believed a plaintiff’s fear of retaliation
by the defendant could not, as a matter of law, justify
equitable relief; second, Chung had not claimed prosecutors
‘‘threatened him or took any specific action that prevented
him from filing his lawsuit.’’ Chung, slip op. at 13.
Whatever the merits of the district court’s first ground —
and we have our doubts, see Currier, 159 F.3d at 1368 (‘‘[A]n
employer’s affirmatively misleading statements that a griev-
ance will be resolved in the employee’s favor can establish an
equitable estoppelTTTT [A]n employee understandably would
be reluctant to file a complaint with the EEOC for fear he
would jeopardize his chances to gain relief voluntarily’’) (em-
phasis omitted) — we agree that Chung’s failure to allege any
specific act or misleading statement by the defendant is
problematic. We disagree, however, regarding the extent of
the problem. Whereas the district court thought it fatal to
Chung’s claim, we think it so only insofar as Chung urges
equitable estoppel, which, as we have said, is based upon the
conduct of the defendant.
But what about equitable tolling? The district court left
that ground unplowed, and we are unable to finish the job on
the record now before us. One situation in which equitable
tolling may apply — when a plaintiff knows he has been
10
injured, but is unaware that his injury may be the result of
possible misconduct by the defendant, see Cada, 920 F.2d at
451 — does not seem applicable here. From the press
reports containing leaked information, Chung learned simul-
taneously that his personal information had been disclosed
and that the disclosure was attributed to officials familiar
with the DOJ investigation. Chung’s complaint alleges that,
at the same time, his lawyer learned that DOJ officials were
responsible for the leaks.
We believe, however, that Chung may be entitled to relief
pursuant to the doctrine of equitable tolling if fear that his
lawsuit would jeopardize his request for leniency — a fear
that seems objectively reasonable in light of the plea agree-
ment and the surrounding circumstances — in fact prevented
him from filing suit from May 1998, when his claim arose,
until his sentencing in December 1998. If so, then the time
remaining in the limitations period — January 1999 to May
2000 — may or may not have been a ‘‘reasonable’’ time within
which to file. That will likely depend on the extent, if any, to
which Chung’s duty to cooperate with the Government inter-
fered with his ability to prepare his claim. See Cada, 920
F.2d at 452 (equitable tolling ‘‘gives the plaintiff extra time if
he needs it. If he doesn’t need it, there is no basis for
depriving the defendant of the protection of the statute of
limitations’’). We leave these questions — and the ultimate
issue whether Chung suffered delay sufficient to excuse his
filing two months late, in August 2000 — to the district court
for resolution in the first instance.
III. Conclusion
For the reasons stated by the district court, we affirm the
judgment of that court insofar as it dismissed Chung’s consti-
tutional claims. We reverse the judgment with respect to
Chung’s claim under the Privacy Act, which we remand to the
district court for further proceedings consistent with this
opinion.
So ordered.