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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 encompassed 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 governmental disclosure of personal information, it was inappropriate 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 misrepresented any information required under this section to be

disclosed to an individual and the information so misrepresented 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 misrepresentation.

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 jurisdiction’’); 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 consistently 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 Commission.’’ 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 ‘‘unpredictability’’ inherent in an ‘‘ad hoc’’ approach, the Court announced a ‘‘general rule to govern the applicability of equitable 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 component 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 government’’).

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 litigants 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 retention 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 assessing 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 (Second) 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 presumption 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 (emphasis 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 tolling,’’ 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 presumption 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 equitable 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 implications. 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 congressional intent equitably to toll the Privacy Act, we conclude

that the Government has not overcome the Irwin presumption.*

* 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 ‘‘jurisdictional.’’ 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 presented 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 discretion 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 Healthcare Corp., 920 F.2d 446, 450–52 (7th Cir. 1991). ‘‘Equitable

estoppel’’ precludes a defendant, because of his own inequitable 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 functionally similar, ‘‘have distinct criteria’’ — the former revolving 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 grievance 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’’) (emphasis 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 simultaneously 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 agreement 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 interfered 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 constitutional 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.