[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________ ________________ No. 1 5

- 12233

________________________ D.C. Docket No. 1:14

- cv - 23009

- RNS

TONI FOUDY , SHAUN FOUDY, Plaintiff

- Appell ants ,

versus

MIAMI

- DADE COUNTY, FLORIDA, Defendant

- Appellee.

___________ _____________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( May 19 , 2016 ) Case: 15-12233 Date Filed: 05/19/2016 Page: 1 of 92 Before MARCUS , DUBINA, and MELLOY , * Circuit Judges. DUBINA, Circuit Judge : Toni and Shaun Foudy (the “Foudys”) appeal the district court’s dismissal of their Driver’s Privacy Protection Act, 18 U.S.C. § § 2721

– 27 25 (“DPPA”) claims. The district court dismissed the Foudys’ DPPA claims as time barred under the applicable statute of limitation s , 28 U.S.C. § 1658(a). The Foudys argue that the ir claims were not barred and the district court erred by not applying the discovery rule to § 1658(a)

. Wh ether the statute of limitati on s in § 1658(a) accrues when the alleged DPPA violation occurs or at the time of discovery is a question of first impression in this circuit. After reviewing the briefs and having the benefit of oral argument , we conclude that the district court correctl y applied the occurrence rule
to § 1658(a) and affirm the district court’s judgment of dismissal.
I. BACKGROUND
A. Facts

The Florida Department of Highway Safety and Motor Vehicles (“DHSMV”) maintains the Driver and Vehicle Information Database (“DAVID” )

. DAVID contains personal information including, but not limited to, a driver’s photograph, social security number, date of birth, state of birth, detailed vehicle

* Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by designation. Case: 15-12233 Date Filed: 05/19/2016 Page: 2 of 93 registration information and description, prior and current home and mailing addresses, dri ving record, insu rance carrier, and emergency contact information. Florida law enforcement personnel have access to DAVID, but are admonished at the login page that authorized personnel may only access the system for official business

. The Foudys supplie d their personal information to DHSMV for driver’ s licens e purposes, including their social security numbers, photographs, dates of birth, states of birth, prior and current mailing addresses, weights, heights, and eye colors. This information was stored and managed in DAVID. Toni Foudy gradua ted from the Indian River police academy in 2005 and worked as a deputy in the St. Lucie and Indian River County Sherriff’s Departments until her termination in 2011

. During her time as a deputy, Toni alleged that she was treated differently from her male counterparts , and that she and her husband, Shaun, were harassed by law enforcement agents. Starting in July 2005, various Florida law enforcement officers accessed the Foudys’ private personal infor mation on the DAVID system . The Foudys claim that these officers accessed their personal information for malicious and vindictive reasons, such as resentment of Toni as a woman in law enforcement, interest in Toni because of her physical attractiveness, a nd confirmation of rumors and gossip about Toni. Relevant to the instant action , th e Foudys provided evidence that Edna Almeida

Case: 15-12233 Date Filed: 05/19/2016 Page: 3 of 94 Rice , a Miami

- Dade County employee, accessed Toni’s personal information on January 10, 2008 , and Shaun’s personal inform ation on May 26, 2005

. The Foudys were unaware that their personal information was being accessed until Toni Foudy requested her St. Lucie and Indian River County DAVID record from the DHSMV in 2011 and obtained a statewide DAVID audit in 2013 . The records revealed over five

- hundred accesses of her personal information by law enforcement personnel. B. Procedural History On December 31, 2012, the Foudys filed their initial lawsuit alleging DPPA violations against several cities and counties, various entity Does, Florida Department of Law Enforcement Does, Department of Highway Safety and Motor Vehicles Does, and present and former Commissioners of each of these departments. Appellee, Miami

- Dade County (“Miami

- Dade”) , was not named as a defend ant in this initial omnibus suit. The district court entered an order severing the Foudys’ claims and dismissing without prejudice all d efendants except the St. Luci e Count y Sherriff’s Department. The district court ordered the Foudys to file separate ac tions against any defendant or group of defendan t s by August 15, 2014 , noting that any newly filed actions would be “considered a continuation of [the] original action for statute of limitations purposes.”

Case: 15-12233 Date Filed: 05/19/2016 Page: 4 of 95 The Foudys subsequently filed thirteen separate actions, including the instant action , filed on August 15, 2014

. The Foudys restated claims for DPPA violations against Miami

- Dade, Edna Almeida Rice, and John and Jane Does. The district court dismissed Edna Almeida Rice and the Jane and John Doe defendants

. The only remaining defendant, Miami

- Dade , filed a motion to dismiss based on the expiration of the statute of limitations. The district court agreed that the statute of limitation s had expired, an d dismissed the case with prejudice on April 21 , 2015. The Foudys then perfected this appeal.
II. STANDARD OF REVIEW “We review the district court’s interpretation and application of statutes of limitations de novo .” Ctr. for Biological Diversity v. Hamilton , 453 F.3d 1331, 1334 (11th Cir. 2006) (citations omitted).
III. DISCUSSION The DPPA regulates the dissemination of personal information used by states’ motor vehicle departments ( “ DMVs ” ). Reno v. Condon , 528 U.S. 141, 143, 120 S. Ct. 666, 668 ( 2000)

. Personal information is defined in the statute as

“ information that identifies an indi vidual, including an individual’ s photograph, social security number, driver identification number, name, address (but not the 5

- digit zip code), telephone number, and me dical or disability information .” 18 U.S.C. § 2725 (3)

. The DPPA prohibits state DMVs and their employees from

Case: 15-12233 Date Filed: 05/19/2016 Page: 5 of 96 knowingly disclosing or making available personal information contained in a motor vehicle record, unless for an exception listed within the sta tute. See id. §
2721 (a)

– (b); Reno , 528 U.S. at 144

– 45, 120 S. Ct. at 669 . The statute also creates a cause of action for an individual whose personal information has been knowingly obtained, disclosed, or used “for a purpose not permitted.” 18 U.S.C. § 2724(a). The DPPA does not contain its own statute of limitation s . Thus, the catch

all statute of limitation s in 28 U.S.C. § 1658(a) applies

. S ection 1658 (a) provides that “[e] xcept as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues. ” The sub s ection that follows , added as part of the Sarbanes

- Oxley Act, provides that “[n] otwithstanding subsecti on (a), a private right of action that involves a claim of [securities] fraud, deceit, manipulation, or contrivance

. . . may be brought no t later than the earlier of . . . 2 years after the discovery . . . [or] 5 years after such violation.” § 1658(b) ; se e Sarbanes

- Oxley Act of 2002, Pub. L. No. 107

- 204, § 804(a), 116 Stat. 745, 801 (2002)

. The parties agree that § 1658(a) is appl icable to the Foudys ’ DPPA claim, but dispute the inte rpretation of the word “accrues ” in § 1658(a). The Foudys
argue that the district court should have applied the discovery rule to find that their DPPA claim accrued when the Foudys discovered the alleged violations . Miami

Case: 15-12233 Date Filed: 05/19/2016 Page: 6 of 97 Dade argues that the district court properly found that the claims accrued when the alleged viol ation occurred. Whether the statute of limitations in § 1658(a) for a DPPA claim accrues at the time the violation occurred or at the time of discovery is a question of first impression in this circuit. The Eighth Circuit recently decided the issue , find ing that a DPPA claim accrues under § 1658(a) when the violation occurs. McDonough v. Anoka C nty
. , 799 F.3d 931 (8th Cir. 2015). We agree, and adopt the Eighth Circuit’s well

- reasoned analysis and conclusion

. See id. at 940

– 43

. The majority of the Foudys ’ arguments 1 for application of the discovery rule in this case are discussed and disposed of by McDonough ’s thorough analysis of the United States Supreme Court decisions in TRW and Gabelli

. See generally Gabelli v. S.E.C. , 568 U.S. ___, 133 S. Ct. 1216 (2013) ; TRW Inc. v. Andrews , 534 U.S. 19 , 122 S. Ct. 441 (2001)

. Read together, these cases instruct that, in the absence of a clear Congressional directive or a self

- concealing violation, the court should not graft a discovery rule onto a statute o f limitations

. McDonough , 799 F.3d at 942. Here, the structure of § 1658 shows that “at the time Congress

1 For the first time on appeal, the Foudys maintain that the discovery rule applies under our equitable tolling principles as they relate to self

- conc ealed violations. See Hill v. Texaco , Inc. , 825 F. 2d 333, 335 & n.2 (11th Cir. 198 7) (stating that a plaintiff can successfully establish equitable tolling by concealment “where the wrong is of such a character as to be self

concealing”). This court gene rally does not consider issues that were not raised to the district court. Access Now, Inc. v. Sw. Airl ines Co. , 385 F.3d 1324 , 1331 (11th Cir. 2004 ). Because the record is void of any mention of equitable tolling in the district court, we decline to add ress the argument. Case: 15-12233 Date Filed: 05/19/2016 Page: 7 of 98 amended § 1658 to add subsect ion (b), it knew how to write statutory text that differentiated between the discovery and occurrence rules and yet cho se to preserve as the general rule the more ambiguous language of § 1658(a).” Id. at 943. Having left this ambiguous language in a catch

- all statute of limitations, “Congress may have intended the trigger for the date of accrual to vary depending upon the specific cause of action at hand.” Id. T he alleged “ DPPA violations are not by their nature self

- concealing , ” n or do they “cry out” for application of the discovery rule

. See id. (discussing TRW and noting that “[i] f the FCRA, a statute designed to protec t against misuse of individuals’ se nsitive, personal information, ‘ does not govern an area of the law that cries out for a pplication of a discovery rule,’ then neither does the DPPA ” (internal citations omitted) (quoting TRW , 534 U.S. at 28, 122 S. C t. at 447) )

. Accordingly, we conclude that the Foudys ’ arguments that the discovery rule applies in this case fail , and we calculate the statute of limitations based on when the alleged violations occurred

. The only alleged DPPA violations that implicate Miami

- Dade occurred on January 10, 2008 and May 26, 2005. The Foudys filed their initial complaint against Miami

- Dade on March 7, 2014, well beyond the four

- year statute of limitations for DPPA claims. 2 Accordingly, the district court properly dismissed the Foudys ’ claims as time barred under § 1658(a)

.

2 As noted by the district court in its order of dismissal , the result would be the same if the

Case: 15-12233 Date Filed: 05/19/2016 Page: 8 of 99 IV. C ONCLUSION Adopting the reasoning and conclusion of the Eighth Circuit in McDonough ,
we hold that t he statute of limitations for a DPPA claim “accrues” under § 1658(a) when the alleged violation occurs. Therefore, the district court did not err in dismissing the Foudys ’ claim s , and we affirm its judgment of dismissal

. AFFIRMED.

complaint against Miami

- Dade related back to the original complaint, filed on December 31, 2012. Case: 15-12233 Date Filed: 05/19/2016 Page: 9 of 9