Oppenheim v. Campbell, 76-1869
| Decision Date | 09 January 1978 |
| Docket Number | No. 76-1869,76-1869 |
| Citation | 571 F.2d 660,187 U.S.App.D.C. 226 |
| Parties | 97 L.R.R.M. (BNA) 2996, 187 U.S.App.D.C. 226, 83 Lab.Cas. P 10,322 Edward E. OPPENHEIM v. Alan K. CAMPBELL, Chairman, Civil Service Commission, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John W. Polk, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and A. Patricia Frohman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellants.
Morton Hollander, Robert E. Kopp, John K. Villa, Attys., Dept. of Justice, Washington, D. C., also entered appearances for appellant.
Edward E. Oppenheim, pro se.
Before BAZELON, Chief Judge, and WRIGHT and ROBB, Circuit Judges.
Opinion for the Court filed by BAZELON, Chief Judge.
Appellee, Edward Oppenheim, was drafted into the military in August of 1942, and was thereby forced to leave a permanent position in the federal civil service at the Board of Investigation and Research (BIR). In 1944 the BIR was abolished. Appellee was honorably discharged on April 4, 1946, and immediately applied for a civil service position. The Civil Service Commission (CSC), however, had interpreted § 8(b)(A) of the Selective Training and Service Act of 1940 (the Act), 1 54 Stat. 885, to mean that the federal government was under no obligation to rehire returning veterans whose agency, together with its functions, had been abolished. CSC Departmental Circular No. 532 (July 31, 1945), Joint Appendix (J.A.) at 27. The CSC consequently failed to rehire Oppenheim until December 22, 1947. In the interim, appellee worked at the United Nations Relief and Rehabilitation Administration (UNRRA).
Upon his retirement from the civil service in 1974, appellee sought to receive civil service retirement credit for his work at UNRRA. The Commission's Bureau of Retirement, Insurance and Occupational Health denied his request, and this denial was upheld by the Commission's Appeals Review Board. Appellee brought suit in district court, which held that Departmental Circular No. 532 was an incorrect interpretation of the Act, and that appellee had a right under the Act to have been restored to a permanent civil service position in 1946. 79 Lab.Cas. P 11,742 (D.D.C.1976). The court concluded that appellee could be made whole if he were now granted retirement credit for his work at UNRRA.
The CSC appeals, challenging the district court's interpretation of the Act and raising in this court for the first time the claim that appellee's suit is barred by 28 U.S.C. § 2401(a), which states that "(e)very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues."
Although appellee presents a sympathetic case, and although we frown upon the government's apparent decision not to argue 28 U.S.C. § 2401(a) to the district court, we are constrained to find that the statute of limitations does operate to bar appellee's recovery on the theory of the case used by the district court. Under the theory of the district court, appellee's suit is a civil action against the United States; the fact that it is equitable in nature does not exempt it from the statute of limitations. Saffron v. United States, 183 U.S.App.D.C. 45, 561 F.2d 938 (1977). Appellee's action "accrued" when his right to resort to federal court was perfected. Crown Coat Front Co., Inc. v. United States, 386 U.S. 503, 510-11, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967). Oppenheim could have resorted to federal court when he was first harmed in 1946. Although his salary at UNRRA was higher than that he had received at BIR and he therefore might not have been able to obtain damages, equitable or declaratory relief would have been available. Oppenheim's present action for retirement credit based upon his failure to be hired in 1946 is legally inseparable from the action he could have begun in 1946 for failure to be rehired. United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Finally, there is no basis for tolling the statute of limitations, as Oppenheim has not demonstrated that "in the exercise of reasonable diligence (he) could not learn, that he had been injured by the government's allegedly wrongful conduct." United States v. Sams, 521 F.2d 421, 429 (3d Cir. 1975). Nor has Oppenheim demonstrated that his injury was effectively "concealed" by the United States. Japanese War Notes Claimants Ass'n v. United States, 373 F.2d 356, 359, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). Although appellee's UNRRA employment was listed on his official civil service retirement record, there are indications in the record that appellee knew as early as 1947 that he had received no retirement credit for his employment at UNRRA. When appellee in 1947 applied for a refund of his civil service retirement deductions, he did not list his work at UNRRA. J.A. at 44. And when appellee wanted to put money back into the civil service retirement system in 1949, he again did not mention his employment at UNRRA. J.A. at 47.
We note, however, that appellee also sought relief in the district court based upon § 10 of the Administrative Procedure Act, 5 U.S.C. § 702. Section 702 authorizes judicial review of agency action at the behest of a person "adversely affected or aggrieved." It contains the proviso that:
Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
Section 702 thus does not authorize us to set right the putative wrong appellee suffered in 1946. It does empower us, however, to set aside actions of the Commission's Appeals Review Board found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Appellee sought timely review of the Board's final decision on December 12, 1975, approximately three months after its issuance.
In reviewing the actions of the Board, we reaffirm the longstanding proposition that the term " 'civil action' as used in § 2401(a) is a term of art judicially and statutorily defined as one 'commenced by filing a complaint with (a) court,' not an executive board." N.V. Philips' Gloeilampenfabrieken v. AEC, 114 U.S.App.D.C. 400, 405, 316 F.2d 401, 406 (1963). See Crown Coat Front Co., Inc. v. United States, 386...
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