UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANE DOE,

Plaintiff-Appellant,

v. No. 97-2650

NATIONAL SECURITY AGENCY,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CA-96-2892-MJG)

Submitted: September 15, 1998

Decided: October 23, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mark Steven Zaid, Washington, D.C., for Appellant. Lynne A. Battaglia, United States Attorney, Earle Bronson Wilson, Assistant

United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Jane Doe appeals the district court memorandum and order dismissing her claim under The Privacy Act of 1974, 5 U.S.C.A. § 552a

(West 1996 & Supp. 1998). Doe contends the court erred in finding

an agency relationship between her and her attorney which resulted

in a determination that her complaint was barred by the Privacy Act's

two-year statute of limitations. Finding no reversible error, we

affirm.*

Doe has been employed by the National Security Agency ("NSA")

since 1988. In 1991, she commenced a civil lawsuit in Virginia to

recover damages caused by an automobile accident unrelated to her

employment. During the course of litigation, the defendant's attorney

requested certain employment information to ascertain whether insurance coverage had been paid to Doe as a result of the accident. Doe

signed an authorization instructing the NSA to release copies of her

employment records to both the defendant's and her own attorney.

On or about September 7, 1994, Doe's attorney received copies of

Doe's records from the NSA. The released records included her

employment file, leave records, complete medical file, psychological

and performance evaluations, job application materials and preemployment records and tests. On or about September 19, 1994, Doe

received copies of the released documents through the NSA's internal

mail system.

On September 13, 1996, Doe commenced the instant law suit. She

alleged that the NSA's disclosure of certain records violated the Privacy Act. The NSA moved to dismiss the complaint on the ground

that the complaint was barred by the Privacy Act's two-year statute

of limitations.

_________________________________________________________________

*Doe's amended complaint raised additional claims under the Constitution and the Administrative Procedure Act which have since been

abandoned.

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The district court found that Doe's cause of action accrued when

Doe knew or had reason to know that the NSA had committed a violation. Following the general rule under Maryland law that a principal

is charged with knowledge of the agent acquired by the agent in the

course of the proceedings, the court concluded that Doe's cause of

action accrued on or about September 7, 1994, when her attorney

received the employment records. Thus, the court dismissed the complaint as untimely.

We review the district court's decision to grant the motion to dismiss de novo. We affirm the district court's dismissal only if it

appears beyond doubt that Doe can prove no set of facts in support

of her claim that would entitle her to relief. See Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir. 1997).

The Privacy Act prohibits a government agency from disclosing an

internal record to another person or agency without the consent of the

person to whom the information pertains, with certain exceptions not

relevant to this action. See 5 U.S.C.A.§ 552a(b). The Privacy Act

requires that an action be brought within two years from the date on

which the action arose. See 5 U.S.C. § 552a(g)(5). A cause of action

arises under the Privacy Act when "the person knows or has reason

to know of the alleged violation." Rose v. United States, 905 F.2d

1257, 1259 (9th Cir. 1990); see also Diliberti v. United States, 817

F.2d 1259, 1262 (7th Cir. 1987). The failure to comply with the limitations period deprives the court of subject matter jurisdiction. See

Diliberti, 817 F.2d at 1262.

Doe does not challenge the district court's decision to use principles of agency law to determine when her cause of action accrued.

Doe contends, however, that the court erred in using Maryland law

rather than Virginia law. Doe argues that Virginia law governs the

action because the released records were received by her attorney in

Virginia and the relationship between her and her attorney was created in Virginia for the purpose of litigating a Virginia lawsuit.

According to Doe, if Virginia law is used, a different conclusion is

reached. The NSA contends that federal common law governs this

action. Furthermore, the NSA contends that Doe is foreclosed from

raising this issue because she did not present it to the district court.

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As this court has repeatedly held, issues raised for the first time on

appeal generally will not be considered. "`Exceptions to this general

rule are made only in very limited circumstances, such as where

refusal to consider the newly-raised issue would be plain error or

would result in a fundamental miscarriage of justice.'" Karpel v.

Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (quoting Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993)).

Doe contends that the court's decision to use Maryland law was

plain error. We disagree. The violation Doe complains of was the

NSA's disclosure of personal information from its Maryland office.

Under these circumstances, using Maryland's law on agency may

have been entirely appropriate. Furthermore, as this action concerns

a federal question in which a federal agency has a critical interest in

its outcome, using federal common law, as the NSA suggests, may

also be appropriate. See Caudill v. Blue Cross & Blue Shield of N. C.,

999 F.2d 74, 78-79 (4th Cir. 1993) (federal common law is applicable

if the matter involves a unique federal interest and significant conflict

exists between the federal interest and the effect of state law or the

application of state law frustrates the federal legislation's objectives).

Regardless of which law is used, even Virginia's law which strictly

limits the authority of the agent, Doe's claim must fail. See, e.g., Eitel

v. Schmidlapp, 459 F.2d 609, 613 (4th Cir. 1972) (Virginia "strictly

limits the authority of an agent to the letter of his instructions"). Virginia follows the general rule that knowledge of an agent gained

while executing the agency is imputed to the principal. Id. at 615; see

also Grogg v. Stevens, 6 F.2d 862, 863 (4th Cir. 1925). This rule is

based upon the principle that it is the "agent's duty to communicate

to his principal the knowledge which he has respecting the subject

matter" of the relationship. People's Nat'l Bank of Rocky Mount v.

Morris, 148 S.E. 828, 830 (Va. 1929). The principal is subject to the

liabilities imposed by this knowledge. See Baker v. Berry Hill Mineral Springs Co., 71 S.E. 626 (Va. 1911). Exceptions may occur if the

agent is committing a fraud upon the principal, engaged in selfdealing, or if communicating the knowledge to the principal would be

illegal. See Fulwiler v. Peters, 20 S.E.2d 500, 502-03 (Va. 1942); In

re Distilled Spirits, 78 U.S. 356 (11 Wall.), 367 (1870). None of those

exceptions apply here.

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We are not persuaded by Doe's argument that her attorney was

only authorized to receive certain employment records. Her attorney

received the disclosed documents only because of the agency relationship. It was the agent's duty to inform Doe what documents had been

disclosed by her employer under the authority of her authorization,

even if some of the documents were released in error. Furthermore,

although Doe insists that her attorney's authority had limits, we find

it difficult to believe that she would not want her attorney to receive

the same documents her adversary received.

We are also not persuaded by Doe's argument that her attorney was

not under a duty to inform her of the disclosure because he did not

appreciate the significance of the documents. Doe claimed in her

complaint that the disclosure of the records had a significant detrimental impact on her Virginia lawsuit. According to Doe, the defendant's attorney used the disclosed records to "embarrass, humiliate

and intimidate Jane Doe during judicial proceedings" and "the jury

awarded Jane Doe a lesser amount of damages" due to the defendant's

attorney's use of the disclosed records. (J.A. at 8). Obviously, by

Doe's own admission, the disclosed records were very relevant to

Doe's lawsuit. Doe's attorney should have recognized the significance of the records. See State Bank of Pamplin v. Payne, 159 S.E.

163, 165 (Va. 1931) (agent had duty to disclose material information

to principal).

It was Doe's duty to establish that the complaint was filed within

the Privacy Act's limitations period. See Bowyer v. United States

Dep't of Air Force, 875 F.2d 632, 635 (7th Cir. 1989). Dismissal was

entirely appropriate because the face of Doe's complaint showed that

the limitations period had run. See Brooks v. Winston-Salem, 85 F.3d

178, 181 (4th Cir. 1996). Doe submitted no evidence contradicting the

complaint's statement regarding when her attorney received the disclosed documents.

Accordingly, we affirm the order of the district court. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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