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March 25, 1992


The opinion of the court was delivered by: MICHAEL B. MUKASEY


 Plaintiff, Grant Peck, sues under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel defendant, the Central Intelligence Agency, to release certain classified documents. Defendant moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. For the reasons set forth below, defendant's motion is granted.


 Plaintiff is the Editor of Manager Magazine in Bangkok, Thailand. (Complaint P3) On August 24, 1981, he wrote the CIA's Freedom of Information Officer, requesting access to the CIA's files on Claudia Ross, an American writer who was murdered in Bangkok in March 1974. Plaintiff requested the information in order to write an article on the Ross murder. (Letter from Peck to CIA 8/24/81)

 On September 11, 1981, plaintiff received a letter from John E. Bacon, then Information and Privacy Coordinator at the CIA, stating that the CIA was holding plaintiff's request pending receipt of a death certificate and a determination of the fee to be charged for the search. In response, plaintiff sent Bacon further information on Ross and noted that a maximum of $ 100 in charges would be acceptable. In a letter dated October 23, 1981, Bacon informed plaintiff that the CIA would be unable to process his request within 10 working days because of a heavy backlog of information requests. Bacon wrote: "it is your right to construe this as a denial, subject to appeal to the CIA Information Review Committee. It would seem more reasonable, however, for us to continue processing your request and to respond as soon as feasible." (Letter from Bacon to Peck 10/23/81)

 On August 13, 1984, Larry R. Strawderman, the CIA's new Information and Privacy Coordinator, responded to plaintiff's request. He sent one newspaper clipping and wrote that all other information on Ross was classified under 5 U.S.C. § 552(b)(1). Plaintiff appealed the determination to the CIA Information Review Committee on September 10, 1984. The appeal was denied on February 13, 1986, and this suit was filed on October 25, 1991.


 When the United States consents to suit, the terms of its waiver of sovereign immunity define the jurisdiction of the federal courts. United States v. Mottaz, 476 U.S. 834, 841, 90 L. Ed. 2d 841, 106 S. Ct. 2224 (1986). "When waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity." Block v. North Dakota, 461 U.S. 273, 287, 75 L. Ed. 2d 840, 103 S. Ct. 1811 (1983); see Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir. 1988) (applying the Privacy Act's statute of limitations). Accordingly, when the United States is a defendant, "'strict compliance'" with the statute of limitations "'is a jurisdictional prerequisite.'" See Akutowicz, 859 F.2d at 1126 (quoting Diliberti v. United States, 817 F.2d 1259, 1261 (7th Cir. 1987)).

 FOIA does not include a statute of limitations; therefore, the applicable statute of limitations is 28 U.S.C. § 2401(a)(1978), the general statute of limitations for suits brought against the United States. Spannaus v. United States Dept. of Justice, 262 App. D.C. 325, 824 F.2d 52, 55 (D.C. Cir. 1987); see Bornholdt v. Brady, 869 F.2d 57, 64 (2d Cir. 1989). That section states 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."

 The "right of action" referred to in § 2401(a) is "not the right to administrative action but the right to file a civil action in the courts of 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). Generally, in suits brought against government agencies that right accrues only when administrative remedies are fully exhausted. Dettman v. United States Dept. of Justice, 256 App. D.C. 78, 802 F.2d 1472, 1477 (D.C. Cir. 1986). FOIA, however, includes an unusual provision that permits judicial review when administrative remedies are constructively exhausted. See Spannaus, 824 F.2d at 58. Pursuant to 5 U.S.C. § 552(a)(6)(c):

 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.

 The "applicable time limit" referred to in § 552(a)(6)(C) is set forth in § 552(a)(6)(A)(i) which states that the agency shall "determine within ten [working] days after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefore." The time limit provisions also require the agency to "make a determination" in an administrative appeal within 20 working days of receipt of the appeal. 5 U.S.C. § 552(a)(6)(A)(ii). Under FOIA, administrative remedies are constructively exhausted and a cause of action accrues when an agency "fails to comply" with either of the "time limit provisions." Spannaus, 824 F.2d at 58.

 Plaintiff filed his request on August 24, 1981, and was notified of the CIA's determination on August 13, 1984. Therefore, under § 552(a)(6)(C), plaintiff constructively exhausted his administrative remedies, and could have filed suit, as early as September 1981. Because the limitations period expires six years after the action first accrues, it appears that plaintiff's complaint, filed on November 7, ...

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