Fitzgerald v. Seamans

Decision Date29 April 1977
Docket NumberNo. 75-1032,75-1032
Citation180 U.S.App.D.C. 75,553 F.2d 220
PartiesA. Ernest FITZGERALD, Appellant, v. Robert C. SEAMANS, Jr., et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

John Bodner, Jr., Washington, D.C., with whom John F. Bruce, William L. Sollee and Ralph J. Temple, Washington, D.C., were on the brief for appellant. Melvin L. Wulf, New York City, also entered an appearance for appellant.

John M. Kelson, Atty., Dept. of Justice, Washington, D.C., of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of court, with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U.S. Atty., Morton Hollander and William Kanter, Attys., Dept. of Justice, Washington, D.C., were on the brief for appellees.

Before LEVENTHAL and WILKEY, Circuit Judges, and BRYAN, * United States District Judge for the Eastern District of Virginia.

Opinion for the Court filed by LEVENTHAL, Circuit Judge.

LEVENTHAL, Circuit Judge:

The District Court found the three year statute of limitations barred the maintenance of a damage action against officials of the Air Force and the Executive Branch for participation in a conspiracy to deprive plaintiff of his civilian position with the Air Force and his constitutional rights, Fitzgerald v. Seamans, 384 F.Supp. 688 (D.D.C.1974). We affirm summary judgment in favor of the Department of Defense appellees; we remand for further factual development the action against the named White House defendant.


Appellant A. Ernest Fitzgerald was Deputy for Management Systems in the Office of the Assistant Secretary of the Air Force for Financial Management from September 20, 1965 until termination of his employment on January 5, 1970. His responsibility was cost analysis of major weapon systems acquisition. On November 13, 1968, Fitzgerald testified on military procurement cost problems before the Subcommittee on Economy in Government of the Joint Economic Committee of Congress. His testimony was notable for his revelation of a potential $2 billion cost overrun on the C-5A transport plane. On November 4, 1969, Fitzgerald was notified that his job had been abolished in a reduction in force, economy reorganization, a termination that became effective January 5, 1970.

Fitzgerald appealed this termination to the Civil Service Commission (CSC) in a letter dated January 20, 1970. He complained that he had been the victim of a discharge improperly motivated by his congressional testimony, entitling him to reinstatement and back pay. The CSC began closed hearings on the appeal on May 4, 1971. Fitzgerald demanded open hearings; this was refused. He sought and obtained an injunction against closed hearings, Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755 (1972). Public hearings were held between January 26 and May 3, 1973. On September 18, 1973, the CSC Chief Appeals Examiner issued a decision that Fitzgerald be reinstated to his original or an equivalent job, with back pay, based on the Examiner's finding:

that the agency's decision to abolish Mr. Fitzgerald's position and to include him in the Project 703 reduction-in-force improperly resulted from and was influenced by reasons purely personal to the appellant; and was for the purpose of terminating his employment with the Air Force. 1

This decision was not appealed and thus became binding. Effective December, 10, 1973, Fitzgerald was reinstated and simultaneously reassigned, back in the Office of the Assistant Secretary of the Air Force for Financial Management, but in a different position, as Deputy for Productivity Management. 2

On January 25, 1974, Fitzgerald filed suit in the district court for $500,000 in compensatory damages and $3,000,000 in punitive damages, alleging a conspiracy to deprive him of constitutional and statutory rights resulting in permanent injury to his career and personal injury to his dignity, privacy, and reputation, as well as mental anguish.

The parties agree that the statute of limitations applicable to this case is that of D.C.Code § 12-301(8) (1973), which establishes a three year limitations period for actions not otherwise enumerated. The District Court agreed, citing Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 84, 478 F.2d 979, 994 (1973). 3 We affirm that ruling.

To avoid the limitations bar, more than three years having elapsed between his discharge and the filing of his action, appellate advances three grounds for exception to operation of the statute of limitations: (1) realization of injury from a past wrong, for harm which was too speculative at the time of the wrong to be actionable, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); (2) fraudulent concealment of the cause of action, Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946); and (3) continuing conspiracy to deny appellant employment and to cover up the conspiracy.


The defendants moved in the district court for summary judgment on the basis of affidavits and a statement of material facts as to which there is no genuine issue. In opposition, plaintiff responded with affidavits, principally his own, and a statement of genuine issues. Donofrio v. Camp, 152 U.S.App.D.C. 280, 283, 470 F.2d 428, 431 (1972).

In order to determine whether there is any dispute which makes summary judgment improper, on any of the three asserted theories, we review appellant's allegations as reflected in his affidavits. The rule is that his affidavits must be taken as true with all disputes resolved in favor of the party opposing summary judgment. His affidavits ran as follows:

Fitzgerald's Affidavits

Fitzgerald testified before the Subcommittee on Economy in Government at the request of its chairman, Senator William Proxmire. The Air Force reluctantly agreed to his appearance as a backup witness, with no prepared text. He disclosed the potential for a $2 billion cost overrun on the C-5A transport plane.

After his testimony, Fitzgerald was socially and professionally ostracized at the Pentagon. Many of his tasks and functions were removed, including most of his C-5A responsibilities, and he was given no significant new assignments. Two months after his testimony, on January 6, 1969, a memorandum was prepared by John Lang, Administrative Secretary to the Secretary of the Air Force, outlining three ways "which could result in Mr. Fitzgerald's departure." One of these ways was the reduction-in-force method which was later put into effect. Fitzgerald became aware of this memo two days later when his superior showed it to him to indicate that he was "no longer useful" to the Air Force, as a result of his testimony and the ensuing publicity. In late May and early June of 1969, Fitzgerald testified four times before the House Armed Services Committee and the Joint Economic Committee at their request.

On May 7, 1969, appellee Robert Seamans, Secretary of the Air Force, told the House Armed Services Committee in closed session of his dissatisfaction with Fitzgerald's work and accused him of leaking "confidential documents" to members of Congress, as well as spending government time on other than official duty, i. e., talking to Congress. Six months later, in hearings on Fitzgerald's dismissal by the Subcommittee on Economy in Government of the Joint Economic Committee, Secretary Seamans partially retracted the leakage charge, indicating that there had been no security violation, but rather than his concern was with following proper channels for transmitting information to Congress.

In May, 1969, an investigation of Fitzgerald was begun by appellee General Joseph Cappucci, Director of Special Investigations in the Air Force. Various Air Force employees who knew Fitzgerald were interviewed and made nonspecific derogatory statements about him. The only specific charge a conflict of interest through continued ownership of stock in Performance Technology Corporation, a consulting firm on weapons system management which Fitzgerald founded before joining the Air Force was not substantiated and dropped. In November, 1969, Congressman William Moorhead became aware of the investigation file and requested to see it. The file provided to him (and later to Senator Proxmire) contained only the four derogatory interviews (with the informants' identities deleted). Missing from the file as thus transmitted were the general background material that had been compiled and the statement of Leonard Marks, Fitzgerald's former superior as Assistant Secretary of the Air Force, which was favorable to Fitzgerald and cleared him of any conflict of interest.

In June, 1969, appellee Spencer Schedler became Fitzgerald's supervisor as Assistant Secretary of the Air Force for Financial Management. At about the same time, Fitzgerald met with then Secretary of Defense, appellee Melvin Laird. Laird told Fitzgerald that he had become "a personnel problem" and that the incoming Assistant Secretary Schedler would be allowed to reorganize his office and pick his deputies. This made it clear to Fitzgerald that his employment would soon be terminated. RIF Project 703 carried out the reduction in force in the fall of 1969 and Fitzgerald's position was abolished. He was informed of this termination on November 4, 1969, to be effective January 5, 1970.

Appellees Seamans, Schedler, and Laird contacted Congressmen and Senators in November, 1969 in response to the reaction to Fitzgerald's layoff. Seamans and Schedler explained that it was due to Fitzgerald's not being "a team player." Secretary Laird stated in testimony to the House Appropriations Committee that Fitzgerald had been "fired" although his C-5A estimates were correct.

On January 20, 1970, Fitzgerald appealed his termination to the Civil Service Commission. The pursuit of this appeal through reinstatement, reassignment,...

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