                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                      July 27, 2005
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 05-30118
                                      Summary Calendar



       STUART H. SMITH, JR.,

                                                           Plaintiff-Appellant,

                                             versus

       UNITED STATES OF AMERICA,

                                                           Defendant-Appellee.


                    Appeal from the United States District Court for
                           the Eastern District of Louisiana
                              (USDC No. 2:03-CV-3006)
           _________________________________________________________


Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

       Reviewing the record de novo, we affirm the district court’s dismissal of Smith’s

suit for lack of subject matter jurisdiction for the following reasons:




       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1.   We agree with the majority of other circuits that, under section 552a(g)(5)

     of the Privacy Act (5 U.S.C. 552a et seq.), a cause of action accrues when

     the plaintiff knew or should have known of the alleged violation. E.g.,

     Davis v. U.S. Dep’t of Justice, 204 F.3d 723, 726 (7th Cir. 2000) (the

     statute of limitations starts to run when the plaintiff first knew or had reason

     to know of a violation) (citations omitted). Because Smith had knowledge

     of the Letter Incident Report of which he complains as early as November

     of 1996 and did not file suit until October of 2003, his claim that the

     government failed to properly maintain a record under the Privacy Act was

     untimely.

2.   We agree with other circuits that the scope of accessibility and the scope of

     amendment under the Privacy Act are coextensive. E.g., Baker v. Dep’t of

     the Navy, 814 F.2d 1381, 1384-85 (9th Cir. 1987); Wentz v. Dep’t of

     Justice, 772 F.2d 335, 338 (7th Cir. 1985) (“[Y]ou cannot amend a

     document if you don’t have access to it”). The Letter Incident Report

     prepared in response to Smith’s FTCA claim was prepared in reasonable

     anticipation of a civil suit or proceeding and is exempt from the access

     requirements of the Act. See 5 U.S.C. § 522a(d)(5). The report is therefore

     also exempt from the amendment requirements of the Act. See id. at §

     522a(d)(2)—(3). Smith’s claim that the government failed to properly

     amend a record under the Privacy Act is barred by exemption.

                                     2
Affirmed.




            3
