he may have had a cause of action," the claim that the statute of limitations has been tolled by defendants' fraudulent concealment of the facts must fail. Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 351 F.2d 762, 764 (1965); Emmett v. Eastern Dispensary & Casualty Hospital, supra, 396 F.2d at 938. It would be anomalous indeed if under the modern Federal Rules of Civil Procedure, which provide for notice pleading and liberal opportunities for discovery, a plaintiff could succeed in a claim of fraudulent concealment merely by alleging that the full "depth and scope of the conspiracy remained hidden" from him and "has not even to this day become fully known." See Rickel v. Levy, 370 F. Supp. 751, 756 (E.D.N.Y.1974).
Therefore, in the case of a civil conspiracy it has been held to be irrelevant to the running of the statute of limitations that the plaintiff did not know of a formal agreement among the parties when the plaintiff did know that the acts of the defendants were causing injury and believed these acts to be illegal. Suckow Borax Mines Consolidated v. Borax Consolidated, 185 F.2d 196, 209 (9th Cir. 1950).
While there is substantial doubt in the Court's mind that any of the activities of the defendants amount to the kind of active concealment or breach of a duty to disclose necessary to make out a claim of fraudulent concealment, see Magee v. Manhattan Life Ins. Co., 92 U.S. 93, 98, 23 L. Ed. 699 (1876), it is unnecessary to reach that issue since it is clear that the claim of fraudulent concealment must fail because, in truth, there was no material concealment. Plaintiff not only knew the essential facts relating to his cause of action well before the statute of limitations ran on his claim, but also publicly alleged many of the same evidentiary details which he reasserts in this lawsuit.
In a letter to the Civil Service Commission dated January 20, 1970, appealing from the dismissal, which has been made defendants' exhibit 10 in this lawsuit, plaintiff's counsel enumerated the same underlying facts which are the basis for the present complaint. For example, in that letter, which in turn drew on the congressional hearings on the dismissal which had been held in November 1969, plaintiff claimed that he had been fired for his congressional testimony, as he does in this lawsuit.
The letter like the present complaint, also claims that the investigation of Mr. Fitzgerald, defendant Seaman's charges that Fitzgerald had released "confidential" information to congressional committees, and the circulation of false reasons to justify the dismissal were all facets of a concerted program of "harassment" carried out against the plaintiff.
The gravamen of the complaint in the present action is that because plaintiff released to Congress embarrassing information relating to military procurement contracts, various Government officials banded together and through concerted activity on a number of fronts sought to drive him out of the Government and discredit him. In order to provide a publicly acceptable rationale for their actions against him, these officials allegedly conducted a broad investigation of plaintiff in an attempt to ferret out facts which could be used to justify his dismissal. Failing that, they allegedly circulated various spurious reasons to justify the dismissal.
These facts, albeit disputed, are essentially what emerged in the congressional hearings into the dismissal and in numerous press accounts regarding the incident. More importantly, they are precisely the same charges which Fitzgerald made in his January 20, 1970, letter to the Civil Service Commission appealing the dismissal and incorporating many of the same evidentiary particulars he again recites in his affidavit in this lawsuit.
Thus all that is really new in this lawsuit is the charge that the White House was part of the conspiracy and "cover-up" and the concomitant "need" for extensive discovery from various former White House aides. It is possible that the claim of executive privilege before the Civil Service Commission denied plaintiff full disclosure of the reasons behind the firing. Had this evidence been available, the Examiner might have accepted plaintiff's view of the motives behind his dismissal in its entirety and granted him the total vindication he seeks. However, it cannot be said that the essential issues were unknown to plaintiff before the statute of limitations ran out. They were, in fact, the same issues he brought before the Commission. That not all the supporting evidence relating to the role and identity of every single conspirator was available to him then -- just as this evidence remained unavailable to him when he filed the present complaint naming several "John Doe" defendants -- will not toll the statute of limitations, since such evidence is not crucial to the bringing of the action. Cf. Emmett v. Eastern Dispensary & Casualty Hospital, supra, 396 F.2d at 938.
At oral argument, plaintiff's counsel supplemented the general thrust of his argument relating to fraudulent concealment by contending that until the Civil Service Commission hearings brought to light certain unspecified facts, plaintiff could not discern a concerted pattern of harassment by Government officials acting outside the scope of their authority. Initially, it is suggested, plaintiff viewed the firing as wrong, but sufficiently within the scope of official duties so that an action for damages would have been barred by the doctrine of official immunity.
However, the letter to the Civil Service Commission appealing the dismissal is once again dispositive, for in it plaintiff clearly maintained, for reasons no better and no worse than he presently advances, that the acts of harassment he had suffered had been unauthorized and completely outside the ambit of legitimate official functions. For example, while discussing the investigatory file on Fitzgerald, counsel wrote:
Further efforts were made to discredit Mr. Fitzgerald personally. Brigadier General Joseph Cappucci, Director of the Office of Security Investigations in the Air Force, conducted an investigation of Mr. Fitzgerald and maintained an investigative file on Mr. Fitzgerald. Secretary Seamans confirmed that a file was maintained by General Cappucci on Mr. Fitzgerald, but stated: 'I have found from him [General Cappucci] that there had never been requested an investigation, nor had an investigation ever been carried out in this case. . . .' Economy in Government Hearings, November 18, 1969, p. 151 [sic. p. 118] . . . . The investigation undertaken by General Cappucci was only one example of the many efforts undertaken by the Air Force and others to discredit the personal integrity of Mr. Fitzgerald. pp. 11-12.
If this is not on its face an allegation, in part supported by Secretary Seamans' testimony, of a concerted pattern of actions taken outside the scope of official authority to discredit the plaintiff, it is at least such a circumstance as would prompt a man of reasonable diligence to suspect that the defendants were acting outside the scope of their authority.
The final argument advanced by plaintiff is that he has been the victim of a conspiracy which "even today is causing him injury." As noted above, the allegation that a civil conspiracy itself continues within the period set by the statute of limitations is of no consequence unless tortious acts causing injury are committed during that period. Plaintiff, however, claims he has suffered continuing injury from the acts of the conspirators sufficient to come within the ambit of cases relating to continuing or repetitive torts. On the facts and circumstances of this case, that argument must be rejected since it confuses an act causing injury within the statutory period with an injury which continues because of a passive failure to remedy it thereafter.
In a number of cases dealing with acts which are by their nature of a repetitive character, the courts have held that those injuries in the series which occur within the period delimited by the statute of limitations may be the subject of a successful action, even though the tortious course of conduct may have originally begun outside the limitations period. Thus, in Underwater Storage, Inc. v. United States Rubber Co., 125 U.S.App.D.C. 297, 371 F.2d 950, 955 (1966), cert. denied, 386 U.S. 911, 87 S. Ct. 859, 17 L. Ed. 2d 784 (1967), where a trade secret had originally been misappropriated outside the period set by the statute of limitations, it was held that the wrongdoer was nonetheless "amenable to suit for any use of the secret so long as the use has occurred within the statutory period of limitations. . . ."
A similar case is Macklin v. Spector Freight Sys., Inc., supra, 478 F.2d at 987, in which the Court of Appeals read a pro se complaint to allege "not merely . . . an isolated refusal of employment occurring in early 1967, but . . . maintaining and supporting a discriminatory hiring system throughout 1967 and 1968." What was actionable in Macklin was not merely the isolated act in 1967 but rather the series of acts continuing into 1968 to perpetuate the discriminatory system. Judge Wright, writing for the Court in Macklin, was careful to distinguish between a layoff, which suggests subsequent recall or new hiring which repeats the wrongful acts of discrimination, and a simple wrongful discharge, which is a discrete act causing a single legal injury even though the amount of damages needed to remedy the injury in the form of a backpay award may continue to accrue. In the course of discussing the case of Cox v. United States Gypsum Co., 409 F.2d 289, 290 (7th Cir. 1969), from which this distinction is drawn, the Court of Appeals in Macklin, supra, 478 F.2d at 987, wrote the following:
Cox stressed that a layoff, as distinguished from a discharge or quitting, tends to suggest a possibility of reemployment and a claim of continuing discrimination 'readily suggests that he claims there has been subsequent recall or new hiring which discriminates against him.'
Here there is no such allegation of continuing wrongful acts, but only the claim that the conspirators refused to act to remedy the wrong by reinstating plaintiff.
Plaintiff misconstrues these cases as supporting the proposition that so long as an employer does not reinstate a wrongfully discharged employee, the employee continues to suffer injury and the statute of limitations does not begin to run. Such a rule would eviscerate the policy of rest implicit in the statute of limitations, since a lawsuit concerning a wrongful discharge would be timely decades later if the employee had not been voluntarily rehired. That a wrong continues to injure a person until it is righted cannot mean that the statute of limitations does not begin to run until the plaintiff is made whole, since that is the very purpose for which any lawsuit is brought. What is required to come within the continuing tort exception, and what is lacking here, is another wrongful injurious act within the statutory period repetitious of prelimitation period acts, not simply a passive refusal to remedy wrongful pre-limitation period acts.
Compare Garelick v. Goerlich's, Inc., 323 F.2d 854, 856 (6th Cir. 1963), with Pioneer Co. v. Talon, Inc., 462 F.2d 1106 (8th Cir. 1972).
This action, despite the allegation of a conspiracy causing continuing injury, cannot be made to come within the continuing tort exception to the statute of limitations. Absent a repetition of the wrongful conduct within the three years immediately prior to the filing of this lawsuit, the continuing tort exception is inapplicable and the Court so holds.
Finally, although plaintiff has nowhere argued the point, the Court notes that the statute of limitations was not tolled by the filing of the appeal from the original dismissal to the Civil Service Commission. Compare Macklin v. Spector Freight Sys., Inc., supra, 478 F.2d at 994, n. 30. Since plaintiff won reinstatement and backpay before the Civil Service Commission, he must necessarily be seeking damages for injuries separate and distinct from those for which he has already been fully compensated. Thus, his present cause of action is an independent claim, albeit factually related, from that which was presented to the Civil Service Commission. Cf. Butterman v. Steiner, 343 F.2d 519 (7th Cir. 1965).
In summary, plaintiff cannot bring this action in 1974 for events surrounding his discharge from Government service in 1970. The three-year statute of limitations bars this action, despite the fact that it has been framed to allege a continuing conspiracy. The allegation of a "cover-up" after the firing is of no consequence since it is clear that Fitzgerald knew the essential facts he alleges in this lawsuit long ago and was not precluded from bringing this action within the period set by the statute of limitations by any fraudulent concealment of material facts by the defendants. The allegations of continuing injury are similarly unavailing, since there are no allegations of any wrongful acts sufficient to give rise to an action within the three years prior to the filing of this lawsuit.
Implicit in the statute of limitations is the notion that any case or controversy must eventually be allowed to die a natural death through the passage of time. Society has an interest in quieting disputes and through the statute of limitations closes its civil courts to the complaints of litigants who have not filed suit before a finite period of time has passed. Here plaintiff's vindication, long sought, is occurring through other actions brought in timely fashion and the present effort to resurrect the controversy in this forum was filed too late.
For the reasons discussed, the Court has concluded that the defendants' motion for summary judgment should be and hereby is granted on the grounds that the matters raised in the complaint are barred by the statute of limitations.