Welcker v. U.S.

• Citation: 752 F.2d 1577
• Decision Date: 22 January 1985
• Docket Number: No. 84-1392,84-1392
• Parties: Stanford Monroe WELCKER, Appellant, v. The UNITED STATES, Appellee. Appeal
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1577

752 F.2d 1577

Stanford Monroe WELCKER, Appellant, v. The UNITED STATES, Appellee.

Appeal No. 84-1392.

United States Court of Appeals, Federal Circuit.

Jan. 22, 1985.

Fredric J. Gross, Mount Ephraim, N.J., for appellant.

Thomas W. Petersen, of Dept. of Justice, Washington, D.C., for appellee. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Helene M. Goldberg, Washington, D.C.

Before DAVIS, KASHIWA and NIES, Circuit Judges.

DAVIS, Circuit Judge.

Stanford Monroe Welcker appeals from a decision of the United States Claims Court, H. Robert Mayer, Judge, granting the Government's motion for summary judgment. Appellant seeks, inter alia, an award of back pay under the Tucker Act for his allegedly wrongful discharge from civilian employment with the Air Force in 1950. The court ruled that appellant's case, filed in 1982, was barred by the six-year statute of limitations on suits brought under the Tucker Act. 28 U.S.C. Sec. 2501 (1982). We affirm.

I

For the purposes of this motion for summary judgment, the Government does not take issue with appellant's version of the hard facts, which is as follows:

Following a tour with the Navy during World War II, appellant worked as a civilian draftsman in the Air Force's Watson Laboratories in Monmouth, New Jersey. Appellant maintains that, in 1944, an FBI agent and an Army Intelligence officer approached appellant and asked him if he would infiltrate and report on the activities of the Walt Whitman Club, a community organization suspected of supporting communist activities. Appellant states that he agreed, and attended a number of club meetings at the local YMCA.

In 1949, the Air Force informed appellant that he was suspended for disloyalty to the Government pursuant to Public Law 77-808. ¹ Welcker obtained counsel, and appealed the decision to the Laboratory's loyalty-security board. While the case was pending, appellant's attorney sent a letter to then-FBI Director J. Edgar Hoover, requesting that the FBI confirm that appellant's participation in the Walt Whitman Club was at the behest of the Government. Hoover referred the matter to the main Justice Department. The Attorney General's office responded to appellant's counsel (in September 1949) by denying that the Government had recruited appellant as an informant. The Government claimed that appellant was already a member of the Walt Whitman Club at the time of his interview with the FBI agent and Army Intelligence officer. According to the Government's letter, a third, unnamed individual "interested in Mr. Welcker's welfare" had suggested that the FBI interview appellant in an effort to persuade him to leave the communist fold. The Justice Department's letter added that "Mr. Welcker never made any report either written or oral, and when questioned regarding specific matters his answers were either evasive or erroneous."

The loyalty-security board held a hearing late in 1949, but refused to allow appellant either to examine the reports of the FBI investigation or to cross-examine Government witnesses. At the hearing, in response to questions from his attorney, appellant related his view of the events surrounding his participation in the Walt Whitman Club's activities, and denied being a communist. The loyalty-security board concluded that appellant was not disloyal; the board recommended, however, that the Air Force dismiss appellant in the interest of national security. In 1950, after another hearing, the Air Force Central Loyalty-Security Board affirmed this determination, as did the Secretary of the Air Force, thereby converting appellant's suspension into a permanent termination. Appellant instituted no legal action at that time.

In 1979, after Congress passed the Privacy Act (5 U.S.C. Sec. 552a), appellant requested a copy of his FBI files. The FBI provided portions of these files in 1981. According to appellant, the documents demonstrate that the FBI and the Justice Department purposely withheld from the Air Force their true role surrounding appellant's participation in the Walt Whitman Club. Moreover, it is asserted that the FBI failed to inform the Air Force that agents observing the club's members often failed to distinguish between those entering the YMCA for club meetings and those entering for other purposes, including meetings of the union representing appellant and other government employees. The entire thrust of the materials, says appellant, shows that the FBI, in ex parte communications to the Air Force loyalty-security board, falsified its reports of appellant's activities, a state of affairs which appellant says he discovered only in 1981 when the FBI released his files.

The Claims Court ruled that, on the basis of the undisputed facts, appellant should have been aware of the FBI's alleged duplicity at the time of the loyalty-security board hearings themselves (1949-1950), at which the Air Force informed appellant that the FBI disputed his version of the story. The court pointed particularly to appellant's Privacy Act request as evidence that appellant had pieced together his view of the FBI's actions long before appellant saw his file. In his request, appellant stated:

The tenor of the questions put to me by the members of the loyalty-security board indicated that the reports filed by Hughes and Allen [the FBI and Army Intelligence agents] were at substantial variance from my sworn testimony .... I infer from the various board members' questions that Hughes and/or Allen destroyed some of the informant reports I provided them, and substituted fabricated accounts of my activities. These were designed to convey the impression that I was concealing useful information and providing false information as to the left-wing activities they had asked me to monitor.

Since appellant suspected that he had been discharged on fabricated evidence approximately thirty-one years before bringing this suit, the court ruled that plaintiff's action was time-barred on the authority of Braude v. United States, 218 Ct.Cl. 270, 585 F.2d 1049 (1978), discussed infra.

II

Welcker concedes that actions under the Tucker Act are subject to a six-year statute of limitations, but relies on the rule that "the running of the statute will be suspended when an accrual date has been ascertained, but plaintiff does not know of his claim." Japanese War Notes Claimants Association v. United States, 178 Ct.Cl. 630, 373 F.2d 356, 358-59 (1967), cert. denied, 390 U.S. 975, 88 S.Ct. 466, 19 L.Ed.2d 461 (1968). As a judicial interpretation of a legislative enactment, the rule is strictly and narrowly applied: "Plaintiff must either show that defendant has concealed its acts with the result that plaintiff was unaware of their existence or it must show that its injury was 'inherently unknowable' at the accrual date." Id. at 359 (footnote omitted). Appellant argues that he could not have known of the FBI's actions prior to passage of the Privacy Act and the submission of his request under that legislation.

The undisputed facts squarely belie that contention. The letter his then attorney received from the Department of Justice in 1949 plainly shows that the Government denied that appellant was a Government informant or supplied any useful information, and appellant's own 1979 statement (quoted supra ) asking for his files demonstrates that at the time of the 1949-1950 hearings he already thought that (1) the FBI reports were very different from his own views of what had occurred and (2) the FBI reports had been fabricated against him. Clearly, appellant was aware in 1949-1950 that he had been dismissed from the federal service on grounds that he himself considered to be wrong and improper.

This was enough to start the running of the six-year span of limitations. Cases from our predecessor court and other circuits firmly establish that the statute of limitations is tolled only so long as the plaintiff is unaware of the wrong committed. "Defendant is not required to wait until plaintiff has started substantiating his claims by the discovery of evidence. Once plaintiff is on inquiry that it has a potential claim, the statute can start to run." Japanese War Notes Claimants Association, supra.

In Braude, supra, the Government summarily dismissed plaintiff from her position in 1951 pursuant to a loyalty-security program similar to the one under which appellant lost his job. The Government informed petitioner at the time that her dismissal was due to a reduction-in-force. Plaintiff finally confirmed the true reason for her dismissal in 1974 after requesting and examining her employment filed under the Privacy Act. The court ruled, however, that certain clues plaintiff received should have put her on notice as to the true cause of her dismissal:

And so it becomes clear, and we conclude, that the evidence before us establishes, as a matter of law, that the statute of limitations began to run as plaintiff acquired information and evidence which should have, and in the eyes of the law did, place her upon inquiry, prior to September 12, 1971 [six years prior to her filing of the complaint], that she had a potential claim. This holds true notwithstanding plaintiff's contention that she did not have enough evidence to prove or substantiate her claim; for, just as plaintiff used the Privacy Act in 1974 as a means of acquiring the evidence needed to substantiate her alleged claim, she could have filed her suit here and availed herself of the broad discovery powers afforded by this court to its litigants, and thereby have acquired the same evidence to prove her claim within the time allowed by the statute of limitations.

585 F.2d at 1054. In the instant case, appellant knew the real reason for and the circumstances surrounding his dismissal at the time of the loyalty-security board hearings; he believed, for example, that the FBI had, in his eyes, lied as to his role of Government...