Braude v. United States

Skelton, Senior Judge,

delivered the opinion of the court:

This case is before the court on cross-motions for summary judgment. It is a civilian pay case, and the petition was filed September 12, 1977. Plaintiff, a former employee of the United States Information Agency, sues to recover back pay from the date of her discharge (effective December 31, 1953, but providing for her to receive a *272temporary appointment beginning January 1, 1954, not to exceed thirty days from the date of the letter informing her of her discharge which was dated December 30, 1953) until such time as she is reinstated to her former position.

Plaintiff began her career as a federal employee in 1943. For the next 10 years she worked in various government offices and always received favorable ratings for her work.

In 1951, while employed by the State Department, plaintiff became the subject of an investigation conducted pursuant to the Loyalty and Security Program.1 In the course of that investigation she answered written interrogatories containing questions about two people whom she was alleged to have known and about certain organizations to which she was alleged to have belonged. After reviewing all of the information in its possession, including plaintiffs answers to the interrogatories, the Loyalty and Security Board voted unanimously to give plaintiff a complete clearance in regard to both loyalty and security.

On December 31, 1953, plaintiff was informed by letter from the Director of the United States Information Agency (USIA) that pursuant to Public Law 2072 her employment by the USIA was being terminated. The reason for the termination was said to be large-scale reduction-in-force (RIF), stemming from a reduced budget.

After leaving her federal employment, plaintiff engaged in an almost continuous campaign to be rehired by the federal government, although she was never successful. After the passage of the Privacy Act of 1974, plaintiff acquired certain documents from her governmental records which she asserts establish that her dismissal was not an ordinary RIF, as she had been told, and reveal that she was actually discharged for security reasons. Thereafter, on September 12, 1977, plaintiff filed this suit contending that the Government deliberately concealed the true reason for her discharge in an illegal attempt to deny plaintiff the due process rights possessed by one discharged for security *273reasons and thereby sought to circumvent the Government’s own regulations applicable to security terminations. The plaintiff claims that the regulations provided that prior to such a termination the plaintiff must be given a written notice of the charges and reasons for the discharge; that a hearing must be held wherein she could be represented by counsel, present witnesses on her own behalf, and cross-examine the witnesses against her; and that she could not be discharged by the Director of the USIA unless he had received a recommendation from the hearing board, had reviewed the record, and had found that a discharge was warranted.

We first consider the limitations issue, as we lack jurisdiction to hear any claim which is not filed within six years after such claim first accrues.3 To facilitate discussion of this issue we will assume that all factual allegations in the petition are true.4

We held in Japanese War Notes Claimants Ass’n. v. United States, 178 Ct.Cl.630, 634, 373 F.2d 356, 358-59 (1967):

In certain instances the running of the statute will be suspended when an accrual date has been ascertained, but plaintiff does not know of his claim. Ignorance of rights which should be known is not enough. Art Center School v. United States, 136 Ct.Cl.218, 227, 142 F. Supp. 916, 921 (1956); Thomas v. United States, 125 Ct. Cl. 76,80 (1953); Dion v. United States, 137 Ct. Cl. 166 (1956); Navajo Freight Lines, Inc. v. United States, 176 Ct. Cl. 1265 (1966). 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. An example of the latter would be when defendant delivers the wrong type of fruit tree to the plaintiff and the wrong cannot be determined until the tree bears fruit. See 1 Williston on Sales, §212(a) (Rev. ed. 1948). In this situation the statute will not begin to run until plaintiff learns or reasonably should have learned of his cause of action. Dawson, Fraudulent Concealment and Statutes of Limitations, 31 Mich.L. Rev. 875 (1933); Harv. L.Rev. supra. But cf. Pickett v. Aglinsky, 110 F.2d 628 (4 Cir. *2741940); Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 62 A. 2d 771 (1948).

The plaintiff has the burden of proof to establish either that "defendant has concealed its acts with the result that plaintiff was unaware of their existence or [she] must show the [her] injury was 'inherently unknowable’ at the accrual date.”

In the case at bar, plaintiff does not contend that the injury was inherently unknowable at the accrual date. The injury resulting from a termination of employment is obviously "knowable.” Plaintiff asserts, however, that the Government concealed the true reason for her discharge and thereby caused her to be unaware of the existence of her claim.

In Japanese War Notes Claimants Ass’n. v. United States, supra, 178 Ct.Cl. at 634-5, 373 F.2d at 359 we said:

* * * Once the statute of limitations has been tolled [by the concealment], it is not necessary that plaintiff obtain a thorough understanding of all the facts to halt the suspension. Defendant is not required to wait until plaintiff has started substantiating [her] claims by the discovery of evidence. Once plaintiff is on inquiry that [she] has a potential claim, the statute can start to run. See, Mich. L. Rev., supra, at 912. This standard is in line with the modern philosophy of pleading which has reduced the requirements of the petition and left for discovery and other pretrial procedures the opportunity to flesh out claims and to define more narrowly the disputed facts and issues. See Ct. Cl. Rules 13-18, 38-46.

We find from the following facts that plaintiff was on inquiry that she had a potential claim at a date prior to six years before she filed her petition.

In her affidavit in support of her motion for summary judgment, plaintiff made the following statement concerning her thoughts near the time of the termination:

While I was puzzled and felt that I might not have been told the entire story behind Mr. Streibert’s action, I had no alternative but to believe * * *

In a letter of February 22, 1956, iron plaintiff to her attorney, Byron Scott, plaintiff stated that she called her old boss at the USIA seeking employment, and that he admitted that her old job was open but said he was trying *275to fill the position with someone in the agency. He advised plaintiff, however, "to speak with the Security Chief of the USIA, a Mr. Charles New [Noone], and discuss my possibilities frankly with him.”

Also, in her affidavit, plaintiff stated, "Early in my efforts [to re-enter Federal employment] I heard that I had in fact been blacklisted by the federal government.” This came to plaintiffs attention in 1958. A Ms. Orienter, who informed plaintiff of her being blacklisted, stated in plaintiffs exhibit 36, that plaintiff "* * * became quite disturbed as it was her first indication that her dismissal was not a routine one. I later learned that she had subsequently hired a lawyer to try and find out the truth of her dismissal.”

On December 19, 1956, plaintiffs attorney wrote the Civil Service Commission and stated:

Miss Braude’s experience in attempting to regain Federal employment indicates that the material in Miss Braude’s file is considered derogatory and even though she has never received a determination on the charges she has been disbarred effectively from Government employment.

On May 1, 1957, the General Counsel of the Civil Service Commission replied to a letter from plaintiffs attorney dated April 10, 1957, in which he stated: "The Commission has no authority to review the agency’s decision even if it is granted that the reason Miss Braude was turned down is that the agency has derogatory information in her file.”

Subsequently, plaintiff requested the intervention of Senator Jacob Javits. On February 27, 1958, a Mr. William Hull of the Civil Service Commission, in reply to the Senator’s request for a review of Miss Braude’s situation, a copy of which was forwarded to plaintiff, stated:

Official records disclosed that Miss Braude was terminated by the USIA under the provisions of Public Law 207, 83rd Congress, effective December 31, 1953 * * * There is no evidence in the Commission’s files that either of these terminations [referring also to the termination of plaintiffs temporary (30-day) appointment] resulted from an unfavorable determination on matters of security-

On June 8, 1965, a Mr. Reed Harris sent an internal USIA memo to a Mr. McNichol of the USIA Office of Security, to wit:

*276I attach a resume prepared by Miss Beatrice Braude, who has asked me whether there might be an opportunity for employment in USIA * * * She later [after her dismissal] got the impression that the discharge may have been for security reasons, as in the past she had accidently met and known slightly the notorious Judith Coplon * * * Do you have sufficient information available to you in Washington to determine whether IOS [Office of Security] would be inclined to interpose an objection if Miss Braude were to apply again formally?

In a letter from plaintiff to Mr. L. Speiser of the American Civil Liberties Union, dated February 18, 1967, plaintiff stated that she had previously told Mr. Harris "the full story.”

On July 20, 1965, Mr. Harris, the one to whom plaintiff had revealed "the full story,” regarding her past security problems, wrote Miss Braude a letter in which he stated:

* * * [I]f an opening is suitable for several candidates, including you, all equally available, obviously there could be a tendency to lean toward others.

The plaintiff, in her affidavit, stated: "The foregoing remarks in Mr. Harris’ letter to me of July 20, 1965, prompted me to contact the American Civil Liberties Union.”

In a letter to Mr. John Burns, Chairman of the New York Democratic State Committee, dated December 15, 1966, David Bernstein, President and Editor of the Sun-Bulletin of Birmington, New York, stated that plaintiff, an old friend of both him and his wife, had informed them that:

[S]he has been barred for all practical purposes from Federal employment of any kind. The reason Beatrice thinks this is so is that in the 1950’s at the request of a mutual acquaintance, she permitted Judith Coplon (involved in the transmission of official U.S. documents to Russia) to stay in her apartment in Paris for a few days while she (Mrs. Coplon) looked for a place of her own. Beatrice was then on the Paris staff of the U.S. Information Agency.
Beatrice says she knew nothing about Judith Coplon at the time, and was simply accomodating a friend’s request. A few months later, she was told that the USIA staff was being reduced and was sent home.
Actually, her account makes me believe her suspicion is well-founded. That kind of accident in association *277would have the kind of consequences she suffered, however innocent she was; and she would never be told officially the real reason.

In her letter of February 18, 1967, to Mr. Speiser of the American Civil Liberties Union, plaintiff acknowledged approaching the Bernsteins on a "personal basis” and having told them "the full story.”

On January 4, 1967, the Director of the American Civil Liberties Union, which had been retained by plaintiff, wrote a letter to John Macy, Chairman of the U.S.Civil Service Commission, which made reference to the Commission’s practice of sending its investigatory file, including the interrogatories submitted to the employee being investigated, to various employing agencies of the federal government. The letter suggested that plaintiffs past security problems were causing her problems, although he stated, "It is difficult, perhaps impossible, to prove that her failure to be hired is related to the circulation of the file with its charges and interrogatories.”

On January 9, 1967, plaintiff, in a letter to a Regional Director of the Department of H.E.W., in which she sought employment, stated:

I’d simply like to assure you that I’ve always been a loyal and devoted civil servant. If you wish I can supply you with the names of former government colleagues now very high up in either government or in college administration work who would testify in my behalf.

After reviewing all of the above events, we reach the inescapable conclusion that prior to September 12, 1971, plaintiff was on inquiry that she had a potential claim. Long before that date, as shown above, plaintiff felt that she had not been told the entire story about her discharge and had been advised by her former boss to frankly discuss re-employment possibilities with the Chief of Security. Plaintiff admitted learning that she had been "blacklisted” (a device used in the past against those whose loyalty was suspect). She also admitted that she was disturbed by indications that her dismissal had not been routine. The reply of the Civil Service Commission to the inquiry of Senator Javits in 1958 strongly implies that his office had been asked to look into the reason for plaintiffs termination and more specifically whether that termination was *278for security reasons. There was also the direct statement by Mr. Reed Harris in 1965, to whom plaintiff admitted having told the full story, that plaintiff believed that the true motive for her discharge was that she was believed to have been a security risk.

The very nature of statutes of limitations is that they deny a claim regardless of its merit. This often seems unfair. But it is the judgment of those vested with the authority to make our laws that such statutes are necessary in order to insure prompt handling of claims and to prevent actions from being withheld until such time that the memories of witnesses and other types of evidence have become obscured or unavailable by the passage of time. Furthermore, the policy considerations behind such statutes contemplate that ignorance of rights which should have been known is not enough to toll their running. 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, that she had a potential claim. This holds true notwithstanding plaintiffs 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.

Accordingly, we hold that plaintiffs cause of action accrued at a date more than six years prior to her instituting suit in this court. Japanese War Notes Claimants Ass’n. v. United States, supra. Therefore, plaintiffs claim is time-barred and outside this court’s jurisdiction. Defendant’s motion for summary judgment is granted and that of plaintiff is denied, and the petition is dismissed.

Act of August 26, 1950 (Public Law 733), 81st Congress.

Public Law 207 allowed the Director of the USIA to terminate the employment of any person above the grade of GS-7 until January 1, 1954, notwithstanding the provisions of any other law, thereby allowing the Director to discharge employees who had accumulated so much tenure and seniority that they could not readily be discharged through the usual reduction-in-force techniques at the time the USIA was established. Pub.L. No. 83-207, ch.340, 67 Stat. 418 (1953).

28 U.S.C. § 2501: Soriano v. United States, 352 U.S. 270, 273-274 (1957).

See Guessefeldt v. McGrath, 342 U.S. 308, 310 (1952); United States v. New Wrinkle, Inc., 342 U.S. 371, 373 (1952); Japanese War Notes Claimants Ass’n. v. United States, 178 Ct. Cl. 630, 632, 373 F.2d 356, 358 cert. denied, 389 U.S. 971 (1967).