Fitzgerald v. Seamans, Civ. A. No. 74-178.

• Decision Date: 09 October 1974
• Docket Number: Civ. A. No. 74-178.
• Citation: 384 F. Supp. 688
• Parties: A. Ernest FITZGERALD, Plaintiff, v. Robert C. SEAMANS, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

384 F. Supp. 688

A. Ernest FITZGERALD, Plaintiff, v. Robert C. SEAMANS, Jr., et al., Defendants.

Civ. A. No. 74-178.

United States District Court, District of Columbia.

October 9, 1974.

John Bodner, Jr., Washington, D. C., for plaintiff.

John Kelson, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

GESELL, District Judge.

This action seeks $3,500,000 in compensatory and punitive damages resulting from an alleged conspiracy among various Government officials to deprive plaintiff of his Government job and to violate his constitutional rights. The matter comes before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment. Several defenses are raised, including the statute of limitations, the doctrine of official immunity, the claim that the administrative remedy before the Civil Service Commission is exclusive, and various procedural points. Each of defendants' contentions raises serious doubts as to the viability of plaintiff's cause of action but for reasons set out below, the Court need reach only the defense that the statute of limitations has run. This issue has been fully argued and briefed.

The complaint was filed January 25, 1974, and recites plaintiff's dismissal from Federal Government service and related events. Plaintiff's dismissal was announced in November, 1969, and became effective January 5, 1970. Both sides agree that the three-year statute of limitations contained in D.C.Code § 12-301(8) (1973) is applicable. See Macklin v. Spector Freight Sys., Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 994 (1973). The Court has concluded that this action, filed four years after the dismissal, is barred under this statute of limitations.

Plaintiff advances three basic arguments to dispute this conclusion. First, plaintiff argues that although the dismissal admittedly occurred outside the period set by the statute of limitations, the conspiracy which caused it has continued. Secondly, plaintiff argues that as part of the continuing conspiracy, its members fraudulently concealed certain crucial facts from him, thereby precluding him from bringing this action within the three-year period set by the statute. Finally, plaintiff urges that in any event the conspiracy has continued to inflict injury on him up to the very date this lawsuit was filed sufficient to make the continuing tort exception to the statute of limitations applicable. As will be seen from what follows, each of these arguments must be rejected.

Before turning to a detailed consideration of the merits of plaintiff's arguments, however, a brief summary of the background of this case will be helpful in order to put the issues in proper perspective. Plaintiff was discharged from his job as Deputy for Management Systems in the Department of the Air Force allegedly in retaliation for testimony he had given before a congressional committee on November 13, 1968, at which he disclosed a $2 billion cost overrun on the C-5A aircraft project. Before his dismissal took effect, a congressional committee inquired into the circumstances and some facts now relied on were revealed.¹ Once his dismissal occurred, plaintiff appealed to the Civil Service Commission, raising issues substantially identical to those which he seeks to raise in this lawsuit. In a letter dated January 20, 1970, to the Civil Service Commission appealing the dismissal, plaintiff claimed that he had been fired in retaliation for his testimony to Congress. In addition, he charged that a concerted campaign had been undertaken by certain Government officials to harass and discredit him, which included an extensive investigation of his personal life, and the circulation of false charges about him designed to justify his dismissal. Full hearings on these claims ensued.

On September 18, 1973, after extensive hearings in which over 4,000 pages of testimony was heard and in which several of the present defendants testified, the Commission found that plaintiff's dismissal had been illegal and recommended that he be reinstated to the same or a comparable position with full back pay. However, the Examiner specifically found that plaintiff had not been fired in retaliation for his congressional testimony. The Examiner's ruling was based on the narrower ground that a reduction in force, which purported to eliminate plaintiff's job as an economy measure, had been in contravention of Civil Service Commission regulations because motivated by "reasons purely personal" to plaintiff. An appeal relating solely to the issue of attorney's fees was taken from that decision, which had been favorable to plaintiff but was based on grounds narrower than he had urged. The final decision, still in plaintiff's favor on the merits, was entered on January 3, 1974.

Thereafter, on January 25, 1974, plaintiff brought the present action through the same counsel who had represented him in the Civil Service Commission proceedings. While not framed as a collateral attack on the Examiner's conclusion that plaintiff had not been fired in retaliation for his testimony to Congress, the complaint in the present lawsuit raises essentially the same issues which were before the Civil Service Commission. The damages plaintiff claims to have suffered at the hands of the conspirators are:

Injury and interruption to his professional career, including loss of his job, loss of present and future income, and destruction of professional and personal relationships; and injury to his person, including violation of privacy, severe mental distress and anguish, and deprivation of his civil and constitutional rights.²

Nine defendants, present and former Government officials, are named in the action, plus "One or More White House Aides" presently unknown and styled "John Does."³ The complaint recites

that on or about November 13, 1968, the date plaintiff first testified to Congress concerning cost overruns on the C-5A, the defendants joined together in a conspiracy to deprive him of his constitutional rights, including his right to provide information to Congress and his right not to be deprived of his job with the Air Force without due process, "because, inter alia, of his testimony."

In furtherance of the conspiracy, the defendants allegedly fabricated false reports impugning plaintiff's conduct in order "to justify his termination." In addition, the defendants allegedly caused a secret investigation to be carried out and as a result misrepresented plaintiff's "trustworthiness . . . as an employee of the Department of the Air Force," threatened to fire him and did fire him.

The crucial fact which cannot be glossed over in this lawsuit is that the key events in issue are the firing and the machinations which led up to it. These events occurred well outside the period set by the statute of limitations. Plaintiff was well aware of these events before the statute of limitations ran on his claim and in fact he presented most of the same charges he makes in this lawsuit to the Civil Service Commission.

Continuing Conspiracy

The three-year statute of limitations embodied in D.C.Code § 12-301(8) (1973) runs "from the time the right to maintain the action accrues," and in tort actions this has been interpreted to mean the time injury results from the wrongful acts. Fort Myers Seafood Packers, Inc. v. Steptoe & Johnson, 127 U.S.App.D.C. 93, 381 F.2d 261 (1967).⁴

Since the dismissal was effective January 5, 1970, the three-year statute of limitations ran out in January, 1973, a year before the present action was filed, unless additional acts by the conspirators causing injury are alleged subsequent to the dismissal. Despite the extensive ventilation of these issues which has occurred in other forums and the fact that the Court, over defendants' strenuous objection, permitted the plaintiff limited discovery in this action, neither the complaint nor the extensive affidavits in support of it allege any independently actionable acts by the conspirators causing injury subsequent to the dismissal or its immediate aftermath.⁵

The complaint does allege that the conspiracy continued after the firing and that the conspirators misrepresented the true reasons for the dismissal to Congressmen and others and otherwise sought to conceal and "cover up" their prior unlawful acts. The allegation that a conspiracy continues within the limitations period is of no consequence to the running of the statute of limitations unless tortious overt acts pursuant to the conspiracy are committed within that period. Lambert v. Conrad, 308 F.2d 571 (9th Cir. 1962). This rule is a natural outgrowth of the long-settled principle that a civil conspiracy is not in itself actionable, but rather, it is the acts causing injury undertaken in furtherance of the conspiracy which give rise to the action. Edwards v. James Stewart & Co., 82 U.S.App.D.C. 123, 160 F.2d 935, 937 (1947); Radford v. United States, 264 F.2d 709 (5th Cir. 1959). As noted, no independently actionable acts causing injury by the conspirators are here alleged within three years prior to the filing of this action. The mere allegation that the conspiracy continued as a conspiracy of silence, or even active concealment, within the limitations period will not suffice to make actionable those acts of the conspirators on which the statute of limitations has run. We turn, therefore, to plaintiff's second argument that the "cover-up" amounted to fraudulent concealment of material facts sufficient to toll the statute of limitations.

Fraudulent Concealment

Plaintiff argues that the fraudulent concealment of material facts by the conspirators precluded him from bringing this lawsuit within the statutory period and that therefore the statute of limitations was tolled. The nub of this contention is stated in the following passage from plaintiff's brief:

Because of the delays in the proceedings before the Civil Service Commission and because of the efforts of defenda

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