Richards v. Mileski
| Decision Date | 21 August 1981 |
| Docket Number | Nos. 79-2422,80-1112,s. 79-2422 |
| Citation | 213 U.S.App.D.C. 220,662 F.2d 65 |
| Parties | Robert James RICHARDS, Appellant, v. Milton Stanley MILESKI, et al. (Two cases). |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-1837).
Joseph Remcho, San Francisco, Cal., with whom James Drew, Washington, D. C., was on the brief, for appellant.
Robert C. Seldon, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and John Oliver Birch, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.
Before WILKEY and MIKVA, Circuit Judges and GORDON, * Senior District Judge for the Western District of Kentucky.
Opinion for the Court filed by Circuit Judge MIKVA.
Robert J. Richards, the plaintiff-appellant, was a career employee with the United States Information Agency (USIA) until 1955, when he resigned under the duress of false charges of homosexual activity. Although Richards acknowledges that he has been aware of the falseness of the charges since 1955, he claims that it was not until 1978, some 23 years after the termination of his employment, that he became aware of knowingly false reports filed by investigators and his superiors that led to the charges and his subsequent forced resignation.
Less than one year after discovering the true nature of the government's behavior, Richards filed suit in the court below against six former federal officials, alleging a variety of tort injuries. 1 Defendants-appellees (defendants) moved to dismiss the complaint on the ground that the action was barred by the applicable statute of limitations. Their motion to dismiss was granted, 2 and this appeal followed. We recognize that the applicability of the statute of limitations is an affirmative defense, and under some circumstances its application is tolled. The tolling question in this case turns on controverted facts, none of which are appropriately decided on a motion to dismiss. Accordingly, we reverse and remand for further proceedings.
As this matter is before us solely on Richards' complaint, without any responsive pleading from defendants, we accept the allegations of the complaint as true for purposes of this appeal. 3 From 1948 until August, 1954, Richards was a successful and well regarded career employee of USIA, which was then a part of the State Department. That month, defendant McNichol ordered that an investigation of Richards be conducted by defendants Mileski and Wilkie. Richards cooperated fully in the investigation and was given uniformly favorable comments by his co-workers, who were interviewed by defendants Wilkie and Fisher. In April, 1955, when the investigation had revealed no information not already contained in Richards' record and nothing of a derogatory nature about him, Mileski and Wilkie concocted a false declaration with the aid of an unreliable informant 4 alleging that Richards had engaged in homosexual activities.
One month later, Mileski and Wilkie questioned Richards and falsely told him that an informant had revealed Richards' homosexual practices. The interrogation lasted five hours, during which Mileski and Wilkie knowingly made false representations of USIA procedure and policy in an effort to coerce Richards to admit misconduct and resign. Following that lengthy interrogation, Mileski filed a report falsely stating that Richards had admitted misconduct during the interrogation. Mileski attached the informant's declaration to his report, and sent the documents to his superiors, including defendants McNichol and W.H.L. Sullivan, Chief of Special Investigations Branch.
In June, 1955, after being told that if he fought the charges of homosexuality his family (including his pregnant wife) would suffer considerably, Richards submitted his resignation. At the time he resigned, he was unaware that the agents who had forced his resignation had done so knowing the information on which they based their reports was false and that the informant was unreliable. Five days after Richards' resignation, Mileski wrote a second memorandum to Sullivan in which he explicitly stated that the informant was unpredictable and unreliable, and that his charges against Richards had no substance.
Richards alleges that for 23 years after that troubled resignation, he remained unaware of the memorandum and the other malicious conduct of the defendants. According to the complaint, although Richards obviously knew that the charges of homosexuality were false in 1955, he had to assume that the agents had been misled by an informer whom they had reason to believe. It was not until July 19, 1978, when Richards received a copy of the Mileski memorandum pursuant to a Freedom of Information Act (FOIA) request, that he became aware of the tortious conduct of the defendants. Richards acted with due diligence after obtaining the memorandum, and filed this lawsuit less than one year later, on July 13, 1979.
The parties claim they agree on which statute of limitations applies, and that they differ only as to whether it should be tolled. In the interest of precision, we note that there are in fact two distinct limitation doctrines involved here. Some of the alleged torts arise solely under common law, and as such are subject to the limitation periods prescribed for such causes of action by District of Columbia law. 5 In addition to the common-law torts, Richards also states claims that come within the Bivens doctrine. 6 Because such a cause of action is federal in its origin, federal law provides the statute of limitations. In this instance, as no specific statute of limitations has ever been enacted by Congress for such claims, the appropriate local statute of limitations is borrowed. 7
Determining which period of years governs Richards' claims will not resolve this case, however. The critical question is not whether the appropriate period is one year or three years, since Richards will qualify or fail under either standard. The key question is when and whether the statute is tolled; here too we must be sensitive to the boundaries of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Although local statutes of limitation are used for federal causes of action for which Congress has not provided an express limitation period, the tolling policy for such a case remains a federal question. See Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C.Cir.1977). Conversely, as to the common-law tort claims, the tolling question must be resolved under District of Columbia precedents. Nyhus v. Travel Management Corp., 466 F.2d 440, 443 n.11 (D.C.Cir.1972). The possible confusion on this point is minimized, however, because the two tolling doctrines are substantially the same and can be applied with one brush to this case. We turn then to the reason why the case must be remanded.
Richards' basic harm occurred in June, 1955, when his career at USIA abruptly terminated. All of the defendants' conduct took place during the period around that date. Thus, without some counterpoise, the time for measuring the period of limitations commenced at the latest in June, 1955. The counterpoise is of course the concept of "tolling," which applies among other occasions when a defendant fraudulently conceals the facts giving rise to the plaintiff's claim. The statutes are tolled until the plaintiff, employing due diligence, could have discovered the facts that were fraudulently concealed. Applying this doctrine to the case before us, we conclude that the statute of limitations may well have been tolled until July 19, 1978.
The gravamen of this lawsuit is not the falseness of the homosexuality charges against Richards, or the government's impropriety in coercing him to resign. Richards obviously knew both of these "facts" in 1955; if the lawsuit were premised on these concerns, any statute of limitations would have run long ago. Rather, the tortious conduct about which Richards complains is the defendants' knowing and malicious use of false information to obtain Richards' resignation under duress. On the basis of the allegations that were before the trial court, it is not clear as a matter of law that the statute of limitations has run: Richards says he did not know of that conduct because it was fraudulently concealed from him until he received the FOIA documents on July 19, 1978. Richards' assertion is sufficient to bring the doctrine of tolling into play both for his federal and common-law claims.
The defendants claim the statutes were not tolled because Richards knew in 1955 that the charges against him had been fabricated. This gave him a fully ripe cause of action against the federal government, defendants argue, and thus Richards' failure to press those claims at the time precludes tolling, which is inappropriate where the plaintiff simply fails to discover all the "details" of a fraud. 8 This analysis is untenable. There are obvious differences between the claims against the government that Richards may have waived by his inaction in 1955 and those he now seeks to bring against individual defendants. It was no mere "detail" in 1955 that the false charges against Richards had been fabricated as part of a deliberate conspiracy against him, or that his own superiors rather than an unknown informant were the source of his misery. Possible claims of wrongful discharge or coerced resignation, which are not raised in this suit, are entirely separate from the causes of action for which Richards now seeks his day in court. 9
Our conclusion about Richards' claims is controlled by Fitzgerald v. Seamans, 553 F.2d 220 (D.C.Cir.1977), in which this court reversed the dismissal of tort claims in a case that is...
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