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FITZGERALD v. SEAMANS

October 9, 1974

A. Ernest FITZGERALD, Plaintiff,
v.
Robert C. SEAMANS, Jr., et al., Defendants



The opinion of the court was delivered by: GESELL

 GESELL, District Judge.

 This action seeks $3,500,000 in compensatory and punitive damages resulting from an alleged conspiracy among various Government officials to deprive plaintiff of his Government job and to violate his constitutional rights. The matter comes before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment. Several defenses are raised, including the statute of limitations, the doctrine of official immunity, the claim that the administrative remedy before the Civil Service Commission is exclusive, and various procedural points. Each of defendants' contentions raises serious doubts as to the viability of plaintiff's cause of action but for reasons set out below, the Court need reach only the defense that the statute of limitations has run. This issue has been fully argued and briefed.

 The complaint was filed January 25, 1974, and recites plaintiff's dismissal from Federal Government service and related events. Plaintiff's dismissal was announced in November, 1969, and became effective January 5, 1970. Both sides agree that the three-year statute of limitations contained in D.C.Code § 12-301(8) (1973) is applicable. See Macklin v. Spector Freight Sys., Inc., 156 U.S.App.D.C. 69, 478 F.2d 979, 994 (1973). The Court has concluded that this action, filed four years after the dismissal, is barred under this statute of limitations.

 Plaintiff advances three basic arguments to dispute this conclusion. First, plaintiff argues that although the dismissal admittedly occurred outside the period set by the statute of limitations, the conspiracy which caused it has continued. Secondly, plaintiff argues that as part of the continuing conspiracy, its members fraudulently concealed certain crucial facts from him, thereby precluding him from bringing this action within the three-year period set by the statute. Finally, plaintiff urges that in any event the conspiracy has continued to inflict injury on him up to the very date this lawsuit was filed sufficient to make the continuing tort exception to the statute of limitations applicable. As will be seen from what follows, each of these arguments must be rejected.

 Before turning to a detailed consideration of the merits of plaintiff's arguments, however, a brief summary of the background of this case will be helpful in order to put the issues in proper perspective. Plaintiff was discharged from his job as Deputy for Management Systems in the Department of the Air Force allegedly in retaliation for testimony he had given before a congressional committee on November 13, 1968, at which he disclosed a $2 billion cost overrun on the C-5A aircraft project. Before his dismissal took effect, a congressional committee inquired into the circumstances and some facts now relied on were revealed. *fn1" Once his dismissal occurred, plaintiff appealed to the Civil Service Commission, raising issues substantially identical to those which he seeks to raise in this lawsuit. In a letter dated January 20, 1970, to the Civil Service Commission appealing the dismissal, plaintiff claimed that he had been fired in retaliation for his testimony to Congress. In addition, he charged that a concerted campaign had been undertaken by certain Government officials to harass and discredit him, which included an extensive investigation of his personal life, and the circulation of false charges about him designed to justify his dismissal. Full hearings on these claims ensued.

 Thereafter, on January 25, 1974, plaintiff brought the present action through the same counsel who had represented him in the Civil Service Commission proceedings. While not framed as a collateral attack on the Examiner's conclusion that plaintiff had not been fired in retaliation for his testimony to Congress, the complaint in the present lawsuit raises essentially the same issues which were before the Civil Service Commission. The damages plaintiff claims to have suffered at the hands of the conspirators are:

 
[Injury] and interruption to his professional career, including loss of his job, loss of present and future income, and destruction of professional and personal relationships; and injury to his person, including violation of privacy, severe mental distress and anguish, and deprivation of his civil and constitutional rights. *fn2"

 Nine defendants, present and former Government officials, are named in the action, plus "One or More White House Aides" presently unknown and styled "John Does." *fn3" The complaint recites that on or about November 13, 1968, the date plaintiff first testified to Congress concerning cost overruns on the C-5A, the defendants joined together in a conspiracy to deprive him of his constitutional rights, including his right to provide information to Congress and his right not to be deprived of his job with the Air Force without due process, "because, inter alia, of his testimony."

 In furtherance of the conspiracy, the defendants allegedly fabricated false reports impugning plaintiff's conduct in order "to justify [his] termination." In addition, the defendants allegedly caused a secret investigation to be carried out and as a result misrepresented plaintiff's "trustworthiness . . . as an employee of the Department of the Air Force," threatened to fire him and did fire him.

 The crucial fact which cannot be glossed over in this lawsuit is that the key events in issue are the firing and the machinations which led up to it. These events occurred well outside the period set by the statute of limitations. Plaintiff was well aware of these events before the statute of limitations ran on his claim and in fact he presented most of the same charges he makes in this lawsuit to the Civil Service Commission.

 Continuing Conspiracy

 The three-year statute of limitations embodied in D.C.Code § 12-301(8) (1973) runs "from the time the right to maintain the action accrues," and in tort actions this has been interpreted to mean the time injury results from the wrongful acts. Fort Myers Seafood Packers, Inc. v. Steptoe & Johnson, 127 U.S.App.D.C. 93, 381 ...


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