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.
I. SUMMARY OF PROCEEDINGS
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:
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.
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).
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 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
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, and contest of the equivalency of the reassignment has been set out, supra note 2. What is significant for present purposes is that all the allegations set out above are substantially contained in Fitzgerald's CSC appeal letter, including the charge that he was illegally fired in retaliation for his November, 1968 testimony on the C-5A and that he had been harassed and intimidated by Air Force officials.
White House Staff Involvement
In the course of the CSC hearings held between January 26 and March 3, 1973, indications appeared of White House involvement in Fitzgerald's dismissal. Secretary Seamans refused to discuss conversations he had had outside of the Department of Defense, invoking executive privilege. However, he inadvertently testified that "I did receive advice from the White House at some period prior to Mr. Fitzgerald's job being abolished."
Immediately after the announcement of Fitzgerald's dismissal in November, 1969, Clark Mollenhoff, then Deputy Counsel to the President, began investigating the reasons and justification for the dismissal, in his role as ombudsman and because of the adverse political consequences if the dismissal were not publicly justified. Mollenhoff met with Assistant Secretary of the Air Force Schedler and Schedler's assistant, Colonel James Pewitt. They gave as reasons for getting rid of Fitzgerald the "not a team player" characterization and unspecified charges of security violations and conflict of interest. Mollenhoff was promised a report spelling out the charges against Fitzgerald, but it never materialized. Thereafter, Mollenhoff wrote intra-White House memoranda calling attention to the Air Force's misjudgment of the case against Fitzgerald. Mollenhoff advocated that, unless a strong case of Fitzgerald's professional deficiencies could be made, the embarrassment of appearing to persecute Fitzgerald for his testimony be avoided by finding him another responsible post in the Defense Department.
On August 31, 1973, in the course of the Watergate hearings of the Senate Select Committee on Presidential Campaign Activities, a memorandum written by appellee Alexander P. Butterfield on January 20, 1970 was made public. In January, 1970, Butterfield was Deputy Assistant to the President, serving as an aide to H. R. Haldeman, White House Chief of Staff. Prior to taking that position, he had been an Air Force officer for 19 years. The memorandum to Mr. Haldeman, with copies to other well-known White House officials, presented Butterfield's opinion of Fitzgerald as a "basic nogoodnik," who "must be given very low marks in loyalty." Fitzgerald Affidavit, July 22, 1974, Attachment G. The memorandum recommended:
Continuing Air Force Hostility
After Fitzgerald was ordered reinstated by the CSC on September 18, 1973, he met with Assistant Secretary on the Air Force William Woodruff to discuss his restoration. Woodruff told Fitzgerald that he was returning "under a cloud" and that it was up to him to "remove the stigma" he bore. To remove the stigma, Woodruff said Fitzgerald would have to gain the acceptance of the staff, including his "enemies" Generals Larry Killpack and Duward Crow, the latter being Comptroller of the Air Force and an appellee in this case.
III. BASIS OF ACTION
We say a few words about the basis of appellant's action, although we intend no ruling whatever on the merits, because it aids in understanding our rulings on the limitations issue, particularly in relation to the claim, discussed in section IV A, infra, that the policy underlying the present action calls for application of the Zenith doctrine, which in effect permits a deferral of suit until damages crystallize.
Suit was brought on the bases of: 1) an implied cause of action for constitutional violations by governmental officials, 2) an action based on 42 U.S.C. §§ 1985(3) and
One issue that would arise on the merits is whether plaintiff's action meets the requirement for an action based on section 2(3) of the Klu Klux Klan Act of 1871, now 42 U.S.C. § 1985(3), "that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).
Another issue is the applicability of the doctrine of official immunity, either as an absolute immunity under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), or a qualified immunity by extension of Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
In view of these difficulties confronting plaintiff's civil action for damages, not least the defense of official immunity, it is hardly surprising that counsel seeking to vindicate Fitzgerald focused on the direct proceeding for reinstatement and backpay. The availability of that administrative remedy is not a reason for failing to consider plaintiff's claim for judicial relief, if timely filed, but neither, as we shall point out, is it a reason for unusual solicitude in order to accommodate the late filing or forge novel exceptions to the statute of repose.
IV. TOLLING THE STATUTE OF LIMITATIONS
A. CSC Appeal and Zenith Argument
Appellant does not argue that his filing of an appeal with the Civil Service Commission and pursuant of an administrative remedy tolls the statute of limitations as it applies to this tort—civil rights damages action.
The trouble with this theory is two-fold: 1) it confuses the wrong and the injury; 2) it overlooks the fact that whatever cause of action appellant may have here, it is independent of the CSC remedy and thus cannot "accrue" as a residuum depending on the timing and outcome of the administrative appeal. We first discuss the second of these points.
Since appellant had the option to bring an action for the harm done to him by appellees concurrently with his recourse to
We turn to appellant's reliance on Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). In that antitrust action, the Supreme Court allowed suit for treble damages for profits lost within the four years limitations period prior to the filing of the action, though arising from conspiratorial conduct at some prior time, where an action brought at the time of the wrongful conduct could not have recovered the future profits because the existence and amount of future profits were too speculative.
The Zenith doctrine arose in and has been confined to the area of antitrust treble damage recovery for lost profits. The Zenith exception to the statute of limitations is necessitated by the intersection of the traditional requirement of reasonable certainty of proof of lost profits and the strong congressional policy in favor of antitrust enforcement by private damage suits.
Neither of these factors is here present. Assuming appellant does have a cause of action, it is based on deprivation of civil rights and injury to reputation and career. These matters are inherently less certain and capable of pecuniary evaluation than lost profits. There is often uncertainty as to the damage that will ensue from a defamation, yet the statute of limitations generally starts running with the publication. Appellant was aware of wrongs done at the time of his discharge, and the fact of injury was sufficiently plain for his cause of action to accrue even though the extent and precise nature of the injury had not yet developed.
B. Fraudulent Concealment
Read into every federal statute of limitations, including the adoption of an analogous local statute of limitations, is the equitable doctrine that in case of defendant's fraud or deliberate concealment of material facts relating to his wrongdoing, time does not begin to run until plaintiff discovers, or by reasonable diligence could have discovered, the basis of the lawsuit. Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 66 S.Ct. 582, 90 L.Ed. 743 (1946), Tomera v. Galt, 511 F.2d 504, 510 (7th Cir. 1975). This discovery of facts standard (with a diligence requirement) has been applied, for example, in securities cases dealing with fraudulent or deceptive practices,
We think it appropriate to apply the discovery-diligence standard to this case, where appellant alleges there was a conspiracy to terminate his government service in retaliation for his congressional testimony, and to conceal this by making false accusations to besmirch his reputation and by perpetrating the termination in the guise of a reduction in force. In the particular case, there is the "aggravation" that appellant has been impeded in exploring the circumstances of his dismissal and its aftermath by invocation of governmental secrecy, e. g., the confidential investigation conducted by General Cappucci, based on statements of unidentified informants, and the invocation of executive privilege in the CSC hearings with respect to communication with the White House. Compare Crummer Co. v. DuPont, 255 F.2d 425 (5th Cir.), cert. denied, 358 U.S. 884, 79 S.Ct. 119, 3 L.Ed.2d 113 (1958), applying the discovery standard to an alleged antitrust conspiracy accomplished by "fraudulent use by the appellees of the governmental bodies whose investigations are by law largely kept secret . . .." Id. at 432. This discovery standard tends to obviate the danger that dismissed government employees will rush to litigation on bare suspicion that superiors acted in bad faith and outside the perimeter of their duties.
However, we disagree with appellant on the proper application of the discovery doctrine to the present case. We agree with the district court that Fitzgerald's appeal letter to the CSC demonstrates that, by 1970, he had facts in hand sufficient to put him on notice of the conspiracy by the Air Force appellees to retaliate against him for his congressional testimony. He not only had a strong suspicion of the "real" reason for his termination, he knew that immediately after his testimony he was ostracized within the Air Force, his duties were shifted, and he was given no new responsibilities; he knew of the Hicks memorandum which showed that the RIF was only a strategem for accomplishing his removal; he knew of the investigation of him by
Appellant claims not to have known at the time of the CSC appeal letter of the conspiracy against him, and to have only later learned the identities of some of the conspirators and the meetings held concerning him. The CSC appeal letter does not use the words of conspiracy. What matters is that appellant knew of facts and actions pointing toward retaliation by the Air Force for his congressional testimony.
Our affirmance of the summary judgment in favor of the defendants includes all the Air Force officials, including Colonel Hans Driessnack, whose identity as an informant in General Cappucci's investigation was not known to appellant three years before the complaint was filed. Appellant had failed to bring timely action against the higher Air Force and Defense officials, although he knew of their actions and statements and had at least constructive knowledge of grounds for the late lodged suit; it would be anomalous and unjust to allow appellant to begin an action against lesser fry merely because their identity and participation were earlier unknown. The matter would stand differently if appellant had proceeded with diligence within the 3-year period by suing those conspirators known to him at the time, and later sought to add other participants whose identity he learned in the course of that suit.
A different situation prevails with respect to appellee Butterfield. He is not lesser fry in the Air Force, but a person of influence in a different center of power. Nothing in the CSC letter indicates that appellant had any knowledge of any White House involvement in his removal. Fitzgerald's CSC appeal letter and Butterfield's memorandum bear the same date—January 20, 1970. The papers before us do not compel any ruling that as a matter of law Fitzgerald should have become aware prior to 1973 of the White House deliberations concerning his government employment. When he finally succeeded in vindicating his right to an open CSC hearing, he was met with the assertion by the Air Force witness of executive privilege with the respect to White House involvement. Butterfield's role emerged by happenstance during the Watergate hearings. Summary judgment for Butterfield on the ground of statute of limitations cannot stand. This implies no view on whether further factual development may show that with diligence plaintiff should have known of White House involvement; or whether Butterfield's opposition to moves within the White House to find another government job for Fitzgerald is an actionable wrong; or whether he has an immunity defense. Those are issues on the merits, and we only reverse the summary judgment that the action against Butterfield is time-barred.
C. Continuing Conspiracy
Appellant seeks to avoid the limitations bar by characterizing appellees' actions
In treble damage actions involving antitrust conspiracies, the action accrues at the last overt act causing injury.
In the present case, appellant's allegation of a continuing conspiracy is general and conclusory, without specification of any retaliatory actions within the limitations period. In his affidavit of September 16, 1974, appellant alleges failure to be hired by a private employer in 1972 due to the well-known attitude of the Department of Defense toward him. However, no active steps to blackball him are alleged. This would constitute subsequent damage resulting from a past wrong.
Appellant claims that the Air Force officials involved in his reassignment in 1973, when he was told that he had to satisfy his "enemies," committed overt acts in the continuing retaliatory conspiracy against him. Even apart from the fact of the almost complete turnover in the Air Force officials involved in Fitzgerald's reassignment in 1973, the allegation raises the claim of a new conspiracy—to disobey and frustrate the carrying out of the CSC order—rather than the original one of getting him out of the Air Force and depriving him of his good reputation by making false accusations. Separate conspiracies may not be characterized as a single grand conspiracy for procedural advantage.
The action against appellee Butterfield is remanded for further proceedings not inconsistent with this opinion. As to all other appellees the judgment is affirmed.
Johnson, supra, 421 U.S. at 461, 95 S.Ct. at 1720.
Zenith, supra, 401 U.S. at 339, 91 S.Ct. at 806.
Zenith, supra, 401 U.S. at 340, 91 S.Ct. at 807 (citations omitted).
Id. at 556.