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CHILDRESS v. NORTHROP CORP.

January 11, 1985

JOHN W. CHILDRESS, Plaintiff,
v.
NORTHROP CORPORATION, ET AL., Defendants


Oliver Gasch, United States District Judge.


The opinion of the court was delivered by: GASCH

I. BACKGROUND

 Plaintiff John W. Childress, III, filed this action against defendants Northrop Corporation ("Northrop") and Commissioner Roscoe L. Egger, Jr. of the Internal Revenue Service ("IRS") on August 15, 1984. The complaint asserts that jurisdiction is based upon the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). The essence of Mr. Childress' claim against Northrop seems to be that Northrop issued fraudulent W-2 statements to plaintiff and to the IRS in February of 1978 that falsely claimed Mr. Childress had received $ 8,000 more in compensation than was in fact paid him. Mr. Childress' claim against the Government is that the actions of the IRS in pursuing assessment and/or collections activities against him were tortious and constitute a denial of his constitutional rights.

 The case is now before the Court on dispositive motions filed by each of the parties. Defendant Northrop has filed a motion to dismiss on statute of limitations grounds. The Government has filed a motion to dismiss or, in the alternative, for summary judgment. In addition to opposing these motions, plaintiff has filed his own motion for summary judgment. *fn1"

 II. NORTHROP MOTION TO DISMISS

 Defendant Northrop's motion to dismiss is based on its assertion that plaintiff's claims against it are barred by the statute of limitations.

 Plaintiff filed his complaint on August 15, 1984. His complaint alleges that "on or about February 1978, Northrop Corporation, willfully and knowingly issued W-2 statements to plaintiff and to the other defendant, the Internal Revenue Service of the United States of America, which were false." Complaint para. 2. Northrop contends that the complaint alleges the commission of tortious acts more than six years before plaintiff filed his complaint and thus that the action is time barred whether the three year limitation period contained in the D.C. Code *fn2" or the two year period in the FTCA *fn3" controls.

 In opposing Northrop's motion to dismiss, Mr. Childress argues that Northrop's alleged tortious conduct was not committed on a date certain but is a continuing tort that continues to this date. Thus Mr. Childress contends that he could not have been aware of the tortious nature of Northrop's act in 1978 as he might well have presumed it to be a bookkeeping error. Instead, Mr. Childress maintains that the basis for the alleged tort is Northrop's subsequent refusal to correct the W-2. His opposition and complaint indicate that he initially sought such a correction in 1979 and that he did so most recently in June 1984.

 In making this argument, plaintiff appears to rely on the continuing tort exception to the operation of the statute of limitations. *fn4" For example, in Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979, 987 (D.C. Cir. 1973), the Court of Appeals for this Circuit held that a complaint of racial employment discrimination by an employer and a union constituted an allegation not merely of an early isolated refusal of employment (that would have been barred under the applicable statute of limitations) but a continued discriminatory hiring system which denied appellant the right of hiring opportunity on a nondiscriminatory basis. The Court viewed the initial refusal of employment as merely a single episode in the maintenance of that continuing conspiracy and noted that plaintiff had alleged that "a discriminatory hiring system continues to exist and continues to deny [minority applicants] jobs." Id.

 Defendant Northrop challenges the applicability of the continuing tort exception to this case. In doing so, defendant relies principally on Fitzgerald v. Seamans, 180 U.S. App. D.C. 75, 553 F.2d 220, 230 (D.C. Cir. 1977), where the Court of Appeals declared that "the mere failure to right a wrong and make plaintiff whole cannot be a continuing wrong which tolls the statute of limitations, for that is the purpose of any lawsuit and the exception would obliterate the rule." In that case plaintiff *fn5" alleged that the Air Force's decision to discharge him and its response to administrative proceedings requiring his reinstatement constituted a single continuing conspiracy. However, the Court rejected the claim of a continuing wrong as "general and conclusory." Id. For example, the Court rejected plaintiff's claim that the Defense Department's tortious conduct had continued when a private employer refused to hire plaintiff as a result of the Department's hostile attitude toward plaintiff as the Court found plaintiff had failed to allege any "active steps to blackball him." Id.

 The Court finds defendant Northrop's reliance on Fitzgerald and its argument that the continuing tort theory is not applicable to be persuasive. Even assuming, as plaintiff contends, that plaintiff might have thought that Northrop had only committed a bookkeeping error in 1978 and that Northrop's actions first became tortious "in 1979" *fn6" when Northrop refused to correct the W-2 form by issuing an amended form, the 1979 activities would have occurred three and one-half to four and one-half years before suit was filed. The only action the complaint alleges since that time is a failure to "issue amended returns despite requests." This seems to represent the kind of "failure to right a wrong" that the Fitzgerald court recognized is not an exception to the statute rather than a case, as in Macklin, where specific acts occurred in furtherance of the original wrongdoing. See also Page v. United States, 234 U.S. App. D.C. 332, 729 F.2d 818, 821 n.23 (D.C. Cir. 1984) ("continuing-tort doctrine, which becomes relevant only when the tortious conduct is ongoing, is to be distinguished from the rule applicable when the plaintiff's injury continues or is manifested after the tortious conduct has ceased" (emphasis supplied)); Collins v. United Air Lines, Inc., 514 F.2d 594, 595-96 (9th Cir. 1975) (fact that employer refused discharged employee's application for reinstatement does not render the initial discharge a continuing act since request for reinstatement merely seeks to redress original termination). This reasoning appears to be consistent with the basis for application of the continuing tort theory: that "no single incident in a continuous chain of tortious activity can 'fairly or realistically be identified as the cause of significant harm.'" Page, 729 F.2d at 821-22 (quoting Fowkes v. Pennsylvania R.R., 264 F.2d 397, 399 (3d Cir. 1959)).

 III. GOVERNMENT MOTION TO DISMISS

 The Government has filed a motion to dismiss or, in the alternative, for summary judgment. In seeking dismissal, the Government maintains: a) that plaintiff has failed to name the proper defendant for the Government; b) that the Court lacks subject matter jurisdiction over plaintiff's complaint since the FTCA excludes any claim "arising in respect of the assessment or the collection of any tax or customs ...


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