Petition — Blanck v. McKeen

Office-Supreme Court, U.S,

83-288 FILED

AUG 22 1993

No. ALEXANDER L. STEVAS,

| CLERK

IN THE

Supreme Court of the United States

October Term, 1983

Albert A. Blanck

Petitioner,

(Maj. Gen.) CHESTER M. McKEEN (USA RET’D)

(Col.) PHILIP P. COLE (USA RET’D)

PAUL CYR

Respondents,

Petition for a Writ of Certiorari To

The United States Court of Appeals

For the Fourth Circuit

PETITION

Albert A. Blanck

Petitioner Pro Se

Post Office Box 1332

August 1983 Roslyn Heights, N.Y. 11577

(i)

QUESTIONS PRESENTED

May a court, consistent with due

process, in a case involving a "federal

question” to enforce federally created

"equitable rights" dismiss the case,

Summarily “from the bench" based upon

non-conclusive, contradictory and

inconsistent findings by the court as to

the cause of action and which ruling

adopts the respondents' catch-all motion

for dismissal included in their brief of

July 7, 1982, page 2, which asserts that;

"(4) Whatever the nature of the cause of

action, it should be barred by the

Statute of limitations". (underlines

added)

(ii)

II

May a court, consistent with due

process, in a case involving a "federal

question" to enforce federally created

"equitable rights", dismiss the case

summarily “from the bench” when there are

‘genuine issues as to material facts and

there are triable issues that cannot be

determined upon motion.

IIl

May a court, consistent with due

process, in a case involving a "federal

question" to enforce federally created

"equitable rights", dismiss the case

summarily, “from the bench" when it has

been asserted by the petitioner that as

Part of a conspiracy, its members

fraudulently concealed certain crucial

facts, records and documents thereby

precluding the petitioner from bringing

(iii)

his suit at an earlier date so as to make

a judgment against the petitioner on the

basis of equitable principles unfair.

IV

May a court, consistent with due

process, in a case involving a “federal

question" to enforce federally created

"equitable rights" dismiss the case,

Summarily, “from the bench", on the

grounds that it is time barred by state

law as to statute of limitations when:

(1) There is no significant state

interest to be served by absorption of

the state law.

(2) There was no consideration

given to the Law of the United States in

granting or withholding remedies.

(3) There was no consideration

given to the interests of the federal

system in having uniformity in the

federal courts.

(iv)

PARTIES TO THE PROCEEDING

Petitioner Albert A. Blanck is, and

was, at all times relevant hereto,

president and the majority stockholder of

Futuronics Corporation.

(a) Futuronics Corporation

("Futuronics"), a New York

Corporation, was at various times

relevant hereto, engaged in the

design and production of

electromechanical equipment and

systems as a prime contractor with

various agencies of the United

States Department of Defense. At

all times relevant hereto, virtually

all of Futuronics' business was with

various agencies of the United

States Department of Defense.

Futuronics Corp. has been operating

since January 3, 1975 as a Debtor In

Possession (DIP) under Chapter XI of

the Bankruptcy Act.

Respondent Major General Chester M.

McKeen, Jr., U.S. Army (Retired) was, at

various times relevant hereto, Director

of Requirements and Procurement of the

U.S. Army Material Command in Alexandria,

Virginia.

(v)

Respondent Colonel Philip Cole, U.S.

Army (Retired) was, at various times

relevant hereto, Chief of the Battlefield

Command and Control Systems Division of

the U.S. Army Material Command in

Alexandria, Virginia.

Respondent Paul Cyr was, at various

times relevant hereto, a civilian

employee of the U.S. Army Material

Command in Alexandria, Virginia.

(vi)

TABLE OF CONTENTS

Page

Questions Presented i

Parties to the Proceeding iv

Opinions Below l

Jurisdiction 1

Constitutional Provisions 2

Statement of the Case 2

Conclusions and Reasons for Granting

Writ 29

Appendix

A. Opinions Below

Opinion of U.S. Court of

Appeals 4th Circuit, dated

May 23, 1983 la

B. Order of Judge Bryan, July

23, 1983 l3a

C. Fitzgerald v. Butterfield

No. Ta-1 78 (D DC April 27,1979) 15a

D. "GAME PLAN" - "SPEAR CARRIERS" 28a

(vii)

TABLE OF AUTHORITIES

Cases Page

Vette Co. v. Aetna, Aetna Casulty &

Surety Co.

6l2 F.2d 1076 (8th Cir. 1980) 8

Penne v. Greater Minneapolis

Board of Realtors

604 F.2d 1143 8

United States v. Bosurge,

530 F.2d 1105,1110 (20 Cir.1976) 9

Campbell v. Haverhill,

Bee UsSs SO0ekS BeGte 2i7 9

Holmberg v. Armbacht,

UsBe , Sects 582 9, 23

Tomera v. Galt,

° 7,209 (7th Cir. 1975) 9, 24

Bridgford v. United States,

550 Fod 978, 981 (4th Cir. 1977) 9, ii

Portes v. United States,

483 F.2d 670, 672 (4th Cir. 1973) 9

United States v. Kubrick,

444 U.S. lll, 100 S. Ct.352 186, 12

Lavelle v. Listi,

9 31 (Sth Cir. 1980) 10

Schnurman v. United States

F Supp. 429, 435 (ED Va. 1980) 12

Stolson v. United States

F.2d P (7th Cir. 1980) 12

(viii)

Page

Liuzzo v. United States

F. Supp. ’ 12

Fitzgerald v. Seamans,

553 F.2d 220 (Dc Cir. 1977) 14

Nixon v. Fitzgerald,

Opinion No 79- (S. Ct. 1982) 15, 29,

30

Fitzgerald v. Seamans,

a0 feds Upp. 088 (D DC 1974) 15, 29

Fitzgerald v. Seamans,

553 F.2d 220 (CA De 1977) 15, 23

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics,

403 U.S. 388 (1971) 16, 18,

38

Harlow et al v. Fitzgerald,

18, 19

Fitzgerald v. Butterfield,

No. st-178 (D DC April 27, 1979) 17

Poller v. Columbia Broadcasting

Systems, Inc.,

aE U.s. 404 473 (1962) 19

Crummer Company v. DuPont

255 F. 2d iss (5th Cir. 1958) 23, 25

Cox v. Stanton,

529 F.2d 47 (th Cir. 1975) 23

Morgan v. Koch,

419 F.2d 993 (7th Cir. 1969) 24

(ix)

Page

Bailey v. Glover

21 Wail.342,348, 88 U.S.342,348,

L.ED 636 (1875) 25

Puttkammer v. Slifel, Nichlaus and Co,

367 F.Supp 495,497 (ND lll 1973) 25

Houlihan v. Anderson-Stokes, Inc.,

434 F.Supp.1324,1328, N.1 (D DC 1977) 25

Guaranty Trust Co. of New York v. York,

65 S.Ct. 1468,1469 28

American Pipe and Steel Corp. v.

irestone Tire and Rubber Co.

292 F.2d 648 28

Marbury v. Madison,

1 Cranch 137,103 (1863) 29

Harlow v. Fitzgerald,

U.S. ,.02, (S.Ct. 1982) 29

IN THE

Supreme Court of the United States

October Term, 1983

Albert A. Blanck

Petitioner,

(Maj. Gen.) CHESTER M. McKEEN (USA RET’D)

(Col.) PHILIP P. COLE (USA RET’D)

PAUL CYR

Respondents,

Petition for a Writ of Certiorari To

The United States Court of Appeals

For the Fourth Circuit

OPINIONS BELOW

The Per Curiam Opinion and

Affirmation of the Court of Appeals of

the Fourth Circuit is reproduced in

Appendix A hereto.

The Order of the United States

District Court is reproduced in Appendix

B hereto.

JURISDICTION

The opinion of the Court of Appeals

(Appendix A) as decided on May 23, 1983.

The jurisdiction of the Supreme Court is

invoked under 28 U.S.C. Sec. 1254(1).

CONSTITUTIONAL PROVISIONS

Constitution, First Amendment

Congress shall make no law...

prohibiting... . the right of the

people .... to petition the government

for a redress of grievances.

Constitution, Fifth Amendment

No person shall... . be deprived

of... property, without due process of

law. . .

STATEMENT OF THE CASE

The instant action arose when the

petitioner, in March, 1981 for the first

time discovered, via the Freedom of

Information Act, Records and Documents

which had been concealed and which

revealed that the defendants had

participated in a conspiracy and

formulated a "McKeen Game Plan",

(Appendix D), the objective of which was

to destroy Blanck and Futuronics

Corporation because Blanck had "Blown the

Whistle” on their shoddy procurement

practices and reported their waste of

millions of dollars in the purchase of

useless and defective government

equipment and documentation. The "Game

Plan" disclosed that the destruction of

Blanck and Futuronics was to be

accomplished, surreptiously, under the

guise of "legitimate contractual actions”

and make it appear that the petitioner

and Futuronics were incapable of

complying with their government

contracts. The "Game Plan" included a

"smear campaign" to paint Blanck and

Futuronics as disreputable and

incompetent. The “Game Plan" included the

dispatching of “Spear Carriers" who lied

and withheld th true facts from the

Assistant Secretary of Defense,

Congressman Conte, Senator Brooke, the

Small Business Administration and the

Contract Adjustment Board.

In Jan. 1975, Futuronics filed its

contract appeals with the Armed Services

Board of Contract Appeals asserting that

the government under eighteen contracts

with Futuronics had (i) wrongfully

withheld progress payments, (ii) failed

to equitably adjust the contracts as to

price and delivery, (iii) had furnished

defective government material and

documentation and (iv) had wrongfully

terminated the contracts for default. An

action on one contract was filed in the

U.S. Court of Claims for breach of

contract. These complaints asserted only

contractual claims against the government

and no assertions were made against the

respondents, individually.

During the period of litigation

before the ASBCA, 1975 thru 1979,

extensive discovery was conducted by the

Futuronics attornies and diligent search

for all records and documents by the

petitioner via the Freedom of Information

Act (FOIA). The "Game Plan" documents

disclosing the actions of the "Spear

Carriers" and the respondents were never

produced,

In Jan. 1978 the ASBCA directed the

government to settle all contract claims

asserted by Futuronics. Futuronics was

fully vindicated in their contract

claims. However, neither the petitioner

or Futuronics were made whole by the

settlement. Futuronics still is in

Chapter XI, trying to become a viable

corporation and the petitioner's

reputation and property have been

destroyed.

The discovery of respondents’ acts

came about despite respondents' attempts

to conceal what transpired from 19708-

1979. Early in 1979, a subcontractor of

Futuronics in relation to his claim

against the government filed a Freedom of

Information Act request for access to all

government agency records pertaining to

Puturonics' litigation against the

government. Futuronics granted

permission to make its records available

on condition that it too, could review

all records. In March 1981, documents

were produced which should have been

produced to Futuronics, at least, as

early as 1975, and which revealed the

respondents' participation in a

conspiracy, "Game Plan” and the acts of

the “Spear Carriers".

On Feb 23, 1982, the petitioner

filed its complaint in the instant action

in the U.S. District Court for the

Eastern District of Va., Alexandria

Division.

The respondent filed a brief in

support of its answers and a motion to

dismiss or in the alternative for Summary

Judgment on July 7, 1982. The petitioner

on July 19, 1982 filed its opposition to

the respondents Motion with an Affidavit

of Blanck.

On July 23, 1982 a hearing was held

before Judge Albert Bryan, Jr., at which

time he granted, from the bench, the

respondents motion to dismiss the case.

The petitioner, on Aug. 18, 1982,

Filed Notice of Appeal to the Fourth

Circuit Court of Appeals. On Nov. 19,

1982 the respondent filed its brief with

the U.S. Court of Appeals for the Fourth

Circuit.

The petitioner filed its reply brief

with the U.S. Court of Appeals for the

Fourth Court on Dec. 20, 1982.

On Apr. 14, 1983, oral arguments

were presented to the U.S. Court of

Appeals for the Fourth Circuit.

On May 23, 1983, the U.S. Court of

Appeals for the Fourth Circuit decided,

Per Curiam, to affirm the judgment of the

U.S. District Court.

RULINGS BELOW

I

THE DISTRICT COURT RULING TO

SUMMARILY DISMISS THE PETITIONER'S

CASE IN ACCORDANCE WITH F.R. CIV.

P. 12 (D) (6) IS CONTRADICTORY

INCONSISTENT AND IS IN CONFLICT

WITH THE LIBERAL RULES AS TO

SUFFICIENCY OF A COMPLAINT SO AS

TO MAKE IT A RARE CASE AS _IN WHICH

A MOTION ON THIS GROUND SHOULD BE

GRANTED.

The U.S. District Court, from the

bench, dismissed the case, pursuant to FR

Civ P 12(b)(6), in accordance with the

respondents’ motion to dismiss having

found that:

"Although couched in terms of

constitutional torts the pomhsaint

fTabii! no more than common law torts,

labi pity for which defendants are

immune"

2. "The complaint also appears ¥°

assert contractual claims over which th

court would have no jurisdiction...

3. "The motion of t ° dqtendants to

iss pecayuse, he act FF es y

applicab vey year. eee on

any d it +. se ng that the last act

e

sm

e

an

fendah or any “aot ,cnergee> e to

Y, gncant cays ng harm to the

ntiffs occurred note than 5 years

r to the time this action was filed,

that at least as early as 1976 the

nt! $c were aware of the substance of

claims of tortious conduct of which

y now complain et thous gh they ma wes

e known the details the eof or a

persons involved therein".

di

th

gE

of

an

plai

pr °

n

p} i

h

th

ha

th

i

d

a

e

e

Vv

e

The court should not have dismissed

the case because it was time barred by

the Statute of Limitations because:

(i) Only common law torts were found

to be asserted by the petitioner for

which the court found, the respondents

were immune; (ii) The court found that

it "appears" that the petitioner asserted

contract claims over which the court had

no jurisdiction.

Thus, while having found that the

petitioner's complaint had not asserted

Constitutional Torts, the District Court,

nevertheless, dismissed the action on

the finding that the petitioner was

"aware of the substance of the claims of

tortious conduct" more than 5 years prior

to the time this action was filed, and

the "action is barred oy the applicable 5

year limitation".

These diverse rulings and

inconsistent findings do not justify a

"Summary Judgment" which is recognized as

a harsh remedy; (Vette Co. v_ Aetna

Casualty and Surety Co., 612 F.2d 1076

(8th Cir. 19880); Penne vy Greater

Minneapolis Board of Realtors, 604 F.2d

1143, 1148 (8th Cir. 1979); United States

v Bosurge, 538 F2d 11905, 11190 (2d Cir.

1976).

The District Court also found, “that

at least as early as 1976 the plaintiffs

were aware of the substance of the claims

of tortious conduct of which they now

complain, although they may not have

known the details thereof or all of the

persons involved therein". (underlines

added)

The District Court ignored that the

point at which the statutory period

commences is a matter governed by federal

common law. Campbell v Haverhill, 155

U.S. 619, 15 S.Ct. 217, 39 L.Ed 288

(1895); Holmberg v Armbrecht, 327 U.S.

392, 66 S.Ct. 582 98 L.Ed. 743 (1945);

Tomera v Galt, 511 F.2d 504, 589 (7th

Cir. 1975). The 4th Circuit has followed

the general rule that the point at which

a claim accrues is governed by federal,

not state, law. Bridgford v U.S., 559

F.2d 978, 981 (4th Cir. 1977); Portes v

U.S., 483 F.2d 670, 672 (4th Cir. 1973).

18

In a malpractice case brought under

the Federal Tort Claims Act, the U.S.

Supreme Court identified the time of

accrual of the cause of action. U.S. v

Kubrick, 44 U.S. lll, 16080 S.Ct. 352,62

L.ED 24 259 (1979). The Court

distinguished between plaintiff's

knowledge of the "factual predicate for a

malpractice claim," i.e., “the fact of

his injury [and] its cause, "and

awareness that a legal wrong had been

done. See Kubrick, 444 U.S. at 122, 1088

S.Ct. at 359 and n.8.

By making this distinction, the

Supreme Court rejected the standard which

would allow the Statute of Limitations to

commence running before the plaintiff was

or should have been aware of the causal

connection between his injury and the

acts of defendants.

Until the plaintiff is in possession

of the "critical facts that he has been

hurt and who has inflicted the injury,"

id., the statute of limitations does not

commence to run. Lavelle v. Listi, 611

F.2d 1129, 1131 (5th Cir. 1980).

ll

The Court of Appeals in the 4th

Circuit has identified the time of

accrual of a cause of action as precisely

that time when the claimant believes he

has a possible cause of action, not just

when an injury appears. "Therefore until

a claimant has had a reasonable

opportunity to discover all of the

essential elements of a possible cause of

action--duty, breach, causation,

damages--his claim..does not accrue.”

(Court's emphasis). Bridgford,

Supra, at 981-982.

The Complaint is clear that

petitioner did not learn all of the

elements of a possible cause of action

until Mar. 1981. Whether or not this

knowledge could have been obtained

earlier is a factual question, and it

must be assumed that it was obtained with

reasonable diligence. The policy of the

Court has been to guard against a

premature application of a statute of

limitations until such time as a

petitioner has a reasonable belief that

he has a cause of action against the

12

prospective defendants. (Schnurman_ vy.

U.S., 490 F. Supp. 429,435 (E.D.Va.

19898).

The "discovery rule" as to accrual

of a cause of action is not limited to

medical malpractice cases, rather, any

plaintiff who is blamelessly ignorant of

the existence or cause of his injury

shall be accorded the benefits of the

discovery rule. Stolson v. U.S., 629

F.2d 1265, (7th Cir. 19880). Each case

must be thoroughly examined to determine

when the plaintiff had knowledge of the

"critical facts" regarding his injury.

On this date, his claim accrues, and the

plaintff is charged with the duty of

promptly investigating and presenting his

claim. "The rationale of Kubrick is

broad enough to warrant, indeed compel,

its application to a normal practice case

if the plaintiff is ignorant of the

critical facts concerning his injury,

Liuzzo v. U.S., 4485 F. Supp. 1274, 1281

(E.D.Mich. 1988).

It is apparent that the District

Court in its “haste” to dismiss the

instant case adopted the respondents

13

(defendants) "catch all" motion that "(4)

Whatever the nature of the cause of

actions, it should be barred by the

statute of limitations.” (underlines

added)

The Circuit Court agreed and

affirmed "on that ground only" that the

petitioner's claims were barred by the

applicable statute of limitations;

despite the fact that the District Court

found that the petitioner had not

asserted a cause of action claiming

Constitutional Torts.

The Circuit Court also found "that

in 1976":

(1) "Appellants knew that the

government's technical data package was

allegedly inadequate".

§#) "that adjustments had been

denied".

3 "that rogress payments had

been Sithhera*™ = my

(4) "they knew then of the DOD

internal memorandum Goncerning the

decision to ‘step back and le the

contractor go bankrupt'".

The Circuit Court found that all of

the foregoing were "alleged

constitutional torts". However, these

very same allegations were found by the

District Court to be "Contractual claims

14

over which the court has no jurisdiction"

or “although couched in terms of

constitutional torts the complaint

asserts no more than common law torts for

which the defendants are immune”.

In furtherance of these convoluted,

inconsistent, and contradictory findings

the Circuit Court found that Appellants

allegations of tortious conduct are

necessarily intertwined with their

contractual claims before the Armed

Services Board of Contract Appeals”.

(underlines added).

The petitioner respectfully submits

that there never was nor could there have

been an “intertwining” of contract claims

with Constitutional Tortious claims.

Finally, ignoring Bridgford and all

the case law recited, supra, the Circuit

Court relied upon Fitzgerald v. Seamans,

553 .2d 228 (DC Cir. 1977) as precedent

for the findings that "Futuronics in 1976

before the Armed Services Board of

Contract Appeals and in the Court of

Claims. .. were ‘on notice’ at least by

that time, of appellee alleged

constitutional torts". The Circuit

15

Court, however, failed to consider the

full findings which were cited in Nixon v

Fitzgerald,. opinion No. 79-1738 (SC June

1982) as follows:

"The District Court dismissed the

action under the District of Columbia's 3

year statute of limitations, Fitzgerald

v. Seamans, 384 F. Supp. 68 (D.D.C.

1974), and the Court of Appeals affirmed

as to all but one defendant, White House

aid Alexander Butterfield; Fitzgerald v.

Seamans, 553 F.2d 228 (CADC 1977). The

Court of Appeals reasoned that Fitzgerald

had no reason to suspect White House

involvement in his dismissal at least

until 1973. In that year, reasonable

grounds for suspicion had arisen, most

notable through publication of the

internal White House memorandum in which

Butterfield had recommended that

Fitzgerald at least should be made to

"bleed for a while” before being offered

another job in the Administration. Id.,

at 225,229. Holding that concealment of

illegal activity would toll the statute

of limitations, the Court of Appeals

remanded the action against Butterfield

16

for further proceedings in the District

Court.

The courts below failed to consider

that the instant cause of action set

forth in the Complaint is well pleaded,

and it is substantially similar to that

set forth in Harlow v. Fitzgerald, 457

U.S » 102 S.Ct. 2727 (1982) which

involved a case of action brought under

the First Amendment. Blanck was singled

out by defendants as a “whistle blower"

who had to be silenced; Fitzgerald also

was the target of ill-meaning government

officials intent on covering up the

embarrassing story he was telling.

The defendants in Harlow, White

House aides Harlow and Butterfield,

allegedly conspired to fire Fitzgerald

for revealing shoddy purchasing practices

of the government. The District Court,

as roted in Harlow, supra at 2732, denied

the defendants' motion for summary

judgment and upheld the legal sufficiency

of Fitzgerald's claims under

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 483 U.S. 388

(1971). Defendants' filed motions to

17

dismiss or, in the alternative, for

summary judgment; this is the same motion

filed by respondents in the instant case.

That motion was denied on the basis that

"Plaintiff" states a cause of action

under the First Amendment to the U.S.

Constitution. See Fitzgerald vv.

Butterfield, No. 74-178 (D.D.C., April

27, 1979) (Order denying Motions to

dismiss or in the alternative for summary

judgment) (Order set forth herein below

at Appendix C).

The court's dismissal in the instant

case appears even more erroneously

premature when viewed against the facts

in Harlow. At the conclusion of 8 years

of discovery “the supporting evidence

remained inferential."; Hariow, supra, at

2730. All that Fitzgerald was able to

establish was that Harlow had conversed

with other principal decision-makers,

including Richard Nixon, and that Nixon

had recalled that Harlow was "all for

canning" Fitzgerald. Butterfield had

circulated a memorandum stating that

Fitzgerald planned to publicize shoddy

purchasing practices. However, no direct

18

link of Butterfield to any decision-

making had been established. Harlow,

Supra, at 2730-2732.

Compared to Harlow, where 8 years of

discovery had been conducted, the facts

in the instant case establish a:

definitive connection between respondents

herein and the torts alleged. This

connection has been made before any

formal discovery has been conducted.

The torts alleged herein and pleaded

clearly in the Complaint did not arise

from previously litigated contract

claims. This is a Bivens cause of action

arising under the First and Fifth

Amendments. Harlow provides substantial

precedent for judicial recognition of the

validity of these claims.

2 DVOZOHASZH

MMAxrmIMIO

Rule 56 of the Federal Rules of

Civil Procedure provides that disputed

questions of fact ordinarily may not be

decided on motions for summary judgment.

19

The Rule states that summary judgment

"shall be rendered forthwith if the

pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any,

show that there is no genuine issue as to

any material fact and that the moving

party is entitled to a judgment as a

matter of law. Fed. R. Civ. P. 56 (c).

In determining whether summary judgment

is proper, a court ordinarily must look

at the record in the light most favorable

to the party opposing the motion, drawing

all inferences most favorable to that

party. E.G., Poller Vv. Columbia

Broadcasting System, Inc., 368 U.S. 464,

473 (1962)." Harlow et al v. Fitzgerald,

Opinion No. 88-945 (S.Ct.)

The following, are, inter alia, the

disputed Material Facts and Triable

Issues:

1. Were constitutional torts

asserted in the instant case?

2. When were all the elements of a

possible cause of action involving

Federal Questions known to the

petitioner?

28

3. Did the petitioner exercise due

diligence so as to discover "all the

elements” of the tortious complaint at

the earliest date?

4. At what point does the statute of

limitations period commence and in the

instant case which concerns Federal

Questions, is it governed by federal

common law?

5. Are the following claims asserted

by the petitioner in his claims before

the ASBCA and U.S. Court of Claims,

Constitutional Torts as found by the

Circuit Court, or purely Contract Claims

as contended by the petitioner and as

found by the District Court?

(a) "Appellant knew that the

government's technical data package was

allegedly inadequate."

(b) "that adjustments had been

denied".

(c) "that progress payments had

been withheld".

(d) "they knew then of the

government memorandum concerning the

decision to step back and let the

contractor go bankrupt”.

21

6. Are the allegations of tortious

conduct, as found by the Circuit Court,

"necessarily intertwined with their

contractual claims before the Armed

Services Board of Contract Appeals and in

its Court of Claims" and should they be

"un-intertwined"?

7. Were crucial facts, records, and

documents fraudulently concealed from the

petitioner until March of 1981?

8. Examination of the "Smoking

Pistol", the "Game Plan" document,

Appendix D, in itself presents genuine

issues of material facts such as:

"(a) Sec. bought Game Plan."; "(b) ---

must prepare a massive paper."; "(1)

Possible Conte meeting today."; "Thinks

‘spear carriers' meetings s/b completed

(successfully) before such actions.";

"Mr. Huggard agrees to try Gen. McKeen

approach"; "“DCASR...until ‘spear

carriers' have okayed (or at least not

objected to) the McKeen approach".

tO

to

II!

THE COURTS BELOW FAILED TO ADDRESS THE

VITAL ASSERTION BY THE PETITIONER THAT

CRUCIAL FACTS, RECORDS AND DOCUMENTS WERE

FRAUDULENTLY CONCEALED FROM THE

PETITIONER THEREBY PRECLUDING THE

PETITIONER FROM BRINGING HIS SUIT AT AN

EARLIER DATE WHICH IF FOUND TRUE WOULD

MAKE A JUDGMENT AGAINST THE PETITIONER ON

THE BASIS OF EQUITABLE PRINCIPLES, UNFAIR

As stated in the Statement of the

Case, a Futuronics subcontractor in Jan.

1979, requested permission to review all

of the government records pertaining to

the Futuronics contracts. Subsequently,

in March 1981 documents and records were

produced which revealed that: the

respondents participated in a conspiracy

and what they termed a "Game Plan" to

destroy Blanck and Futuronics; the

dispatching of "Spear Carriers" to

discredit Futuronics and the petitioner

at all the agencies cited and the

concealment of all documents and records

which corroborated the “Whistle Blowing"

allegations of Futuronics and Blanck.

Neither the District Court or the Circuit

Court addressed this issue.

Read into every federal statute of

limitations is the equitable doctrine

23

that in case of defendant's fraud or

deliberate concealment of material facts

relating to his wrong-doings, time does

not begin to run until plaintiff

discovers, or by his reasonable diligence

could have discovered, the basis of the

lawsuit. Holmberg v. Armbrecht 1327 US

392, 66 S. Ct. §82; Fitzgerald v.

Seamans, 53 F. 2nd 220, 228 (D.C. Cir.

1977).

This discovery of facts standard

(with a diligence requirement) has been

applied, in securities cases dealing with

fraudulent or deceptive practices, in

medical malpractice cases, in cases

involving violation of a duty to bargain

in good faith (see cases cited in

Fitzgerald, at 228, n. 12, n. 13, n. 14),

in antitrust cases, Crummer Co. Vv.

DuPont, 255 F. 2nd 425 (5th Cir. 1958),

and in cases brought under 42 U.S.C.

Section 1983, Cox v. Stanton, 529 F. 2nd

47 (4th Cir. 1975).

In cases where concealment by

Defendants has tolled the statute of

limitations there has been some type of

fraudulent behavior by Defendants. In

24

the first type, the most common, the

fraud goes undiscovered even though the

defendant after commission of the wrong

does nothing to conceal it and the

plaintiff has diligently inquired into

its circumstances. The Plantiffs' due

diligence is essential here. Tomera vy.

Galt, 511 F. 2nd 564, 509 (7th Cir.

1975); Morgan v. Koch, 419 F. 2d 993 (7th

Cir. 1969). In the second type, the

fraud goes undiscovered because the

defendant has taken positive steps after

commission of the fraud to keep it

concealed. This type of fraudulent

concealment tolls the limitations period

until actual discovery by the plaintiff.

Tomera, supra, at 519 and cases cited

therein. The allegations in the instant

Complaint are sufficient under either

Standard.

But the presence of fraud by the

respondents themselves is not a sine qua

non for a tolling of the statute of

limitations for reasons of concealment.

An exception to the rule that the

fraudulent concealment alleged must be

committed by the defendant who raises the

25

bar of the statute was carried out in the

case of Bailey vy. Glover, 21 Wall.

342,348,88 U.S. 342, 348,22 L.Ed.636

(1875):

"Where “8 ar injured Dy the

fraud remains gp Inc e of it without

any fault or B.A of @iti igence or careon

hiS part, the bar of the Statute does not

begin to run until ‘the fraud is

discovered, though _ there be no special

circumstances or efforts on the part of

fraud to conceal

he a

dge of the other

Elaborating on this exception nearly

190 years later, the court in Puttkammer

v. Stifel, Nicholaus and Co., 367 S.

Supp. 495, 497 (N.D.111.1973), held:

One element of the Bailey doctrine

e,

then, is that if Defendants’ activities

are of such a nature that they conceal

themselves, then even though the

Befen da Ate may have taken no sf€eps to

conce eal. hem, there will + a tolling oF

the Statute." “8 als

Inc. 434° F. Supp. ’

n. ~DeGe BU? ede

The "“self-concealing" exception is

Similar to that in Crummer where the

Court found the information leading to

the accrual of the cause of action to be

inherently concealing. Assuming,

arguendo there was no active fraud by the

respondents, the Complaint satisfies both

the “self-concealing” and “inherently

26

concealing” standards. Documents

pertaining to defense contracts are

necessarily withheld from the public

domain as a matter of course. This

concealment was challenged by a Freedom

of Information Act request, which was

made under petitioner's auspices. The

information from this request gave

petitioner for the first time, a

sufficient basis for this cause of

action. That information was received in

Mar. 1981. That is when the cause of

action accrued. Under the Va. statute of

limitations, - either 2 years for

personal injury or 5 years for injury to

property, this suit was filed in a timely

fashion.

In D'Oench, Duhme & Co. v. Federal

Deposit Insurance Corp., Justice Jackson

said: "A federal court sitting in a non-

diversity case such as this does not sit

as a local tribunal. In some cases, it

27

may see fit for special reasons to give

the law of a particular state highly

persuasive or even controlling effect,

but in the last analysis its decision

turns upon the law of the U.S., not that

of any state. Federal law is no

juridicial chameleon changing complexion

to match that of each state wherein

lawsuits happen to be commenced because

of the accidents of service of process

and of the application of the venue

statutes. It is found in the federal

Constitution, statutes, or common law.

Federal common law implements the federal

Constitution and statutes, and is

conditioned by them. Within these

limits, federal courts are free to apply

the traditional common-law technique of

decision and to draw upon sources of the

common law in cases such as the present.”

On some issues in private federal

question cases, there may be compelling

reasons for ignoring state law and

following an independent federal rule, as

where Congress has clearly indicated a

substantive policy it wishes to have

followed, or there are indications of a

28

leaning toward uniformity and there is no

significant state interest to be served

by absorption of the state law as the

rule of decision.

There also appears to be opinions

which suggest that the doctrine of

"equitable remedial rights" persists and

that a federal court sitting in equity is

free to grant or withhold remedies

without regard to what a state court

would do in a similar case. Guaranty

Trust Co., of N.¥. v. York, 65 S. Ct. at

1468-1469. As an extension of the

doctrine that federal law is controlling,

is the decision that federal law governs

in a diversity action by a subcontractor

against a government prime contractor;

American Pipe and Steel Corp. Vv.

Firestone Tire & Rubber Co., 292 F. 2d

640.

Based on the foregoing, the instant

case warrants consideration by the U.S.

Supreme Court since an important question

of federal law has not been decided by

the lower courts and rather than address

the principal issues, the lower courts,

inter alia, dismissed the case,

29

Summarily, ruling that it was time barred

by state statute of limitations.

CONCLUSIONS AND REASONS FOR GRANTING WRIT

The instant case is not an

insubstantial lawsuit. There are

Striking parallels between the events

herein and those of the noted and

courageous "whistle blower", A. Ernest

Fitzgerald, see Fitzgerald v. Seamans,

553 F. 2d 228 (D.C. Cir. 1977). In both

cases government officials went well

beyond the scope of their official duties

to punish a citizen who exposed their

"shoddy" procurement practices and waste

of millions of dollars of government

funds. See, Harlow v. Fitzgerald, 457

U.S. , 1862, S. Ct. 2727 (1982).

As pronounced in the Dissenting

Opinion in re Nixon v. Fitzgerald:

"The principle that should guide the

Court in deciding this question was

Stated long ago by Chief Justice

Marshall: ‘The very essence of civil

liberty certainly consists in the right

of every individual to claim the

protection of the laws, whenever he

receives an injury.' Marbury v. Madison,

38

1 Cranch 137, 163 (1883). Much more

recently, the Court considered the role

of a damages remedy in the performance of

the courts' traditional function of

enforcing federally guaranteed rights:

"Historically, damages have been regarded

as the ordinary remedy for an invasionof

personal interests in liberty’. Bivens

v. Six Unknown Federal Narcotics Agents,

403 U.S. 388, 395 (1971). To the extent

that the Court denies an otherwise

appropriate remedy, it denies the victim

the right to be made whole and, therefore

denies him 'the protection of the laws.'"

It is respectfully submitted that

the lower courts, in summarily dismissing

the instant case, have "denied" the

petitioner “the right to be made whole”

and, therefore, "denies" him "the

protection of the laws"; in re

Nixon v. Fitzgerald, (dissenting) supra.

For all of the foregoing reasons,

the Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

Albert A. Blanck

foes eta ee zee 1332

oslyn He s .Y.

nessy pens ’

Pro Se

APPENDIX

APPENDIX A

Opinion, Per Curiam, dated May 23, 1983

U.S. Court of Appeals for the 4th Circuit

(la)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

O. 82-1738

Albert A. Blanck,

Futuronics Corporation,

Appellants,

Vv.

(Maj. Gen.) Chester M. McKeen, (Jr.),

(U.S.A. Ret'd), (Col.) Philip Cole,

(U.S.A. Ret'd), Paul Cyr,

Appellees.

Appeal from the United States District

Court for the Eastern District of

Virginia, at Alexandria.

Albert V. Bryan, Jr., District Judge.

Argued:April 14,1983 Decided:May 23,1983

Before HALL and MURNAGHAN, Circuit

Judges; and FOX,* District Judge.

Robert F. Condon (Finley, Kumble, Wagner,

Heine, Underberg & Casey; Thomas J. Walsh

on brief) for Appellants; Jenny A.

Sternbach (J. Paul McGrath, Assistant

Attorney General; Elsie L. Munsell,

United States Attorney, Barbara L.

Herwig, Civil Division, Appellate Staff,

Department of Justice on brief) for

Appellees.

*Honorable James C. Fox, United

States District Judge for the Eastern

District of North Carolina, sitting by

designation.

(2a)

PER CURIAM:

Futuronics Corporation and Albert A.

Blanck, its president, appeal from the

district court's order dismissing their

complaint against Maj. Gen. Chester M.

McKeen, Jr., Col. Philip Cole and Paul

Cyr. The district court ruled, inter

alia, that appellants' claims were barred

by the applicable statute of limitations.

We agree and affirm on that ground alone.

I.

Between 1968 and 1974, Futuronics

was awarded eighteen contracts with

various agencies of the Department of

Defense (DOD) representing $37 million of

business. By 1973, problems had arisen

regarding Futuronics' inability to meet

the production and delivery schedules

under some of the contracts.!?

Futuronics' continued failure to perform

(3a)

led to termination of the contracts, and

on January 3, 1975, Futuronics filed a

petition under Chapter XI of the

Bankruptcy Act.

Futuronics appealed the termination

of its contracts to the Armed Services

Board of Contract Appeals. In its

administrative complaint, dated October

18, 1976, Futuronics alleged that DOD

officials caused its financial

destruction by terminating the contracts.

The complaint quotes language from an

internal DOD memorandum which states in

part that: "It was determined that it was

lperformance of these contracts by

Futuronics was dictated by specifications

and technical data, which were prepared

and furnished by the government, as well

as by the utilization and inclusion in

the end products of government samples

and government-furnished property.

Delivery dates and specific periods of

performance were established by the

government, with the government

warranting that the property furnished by

it was satisfactory for its intended

purpose and application.

(4a)

in the Government's best interest to step

back and let the contractor go bankrupt."

After preliminary discovery and pre-

hearing conferences, the Board

consolidated Futuronics' appeals into one

proceeding “for trial and resolution of

all subsidiary issues as well as the

ultimate issue of whether the Government

caused ([Futuronics'] bankruptcy.

On November 18, 1976, while

Futuronics' claims were still pending

before the Board, Futuronics instituted

an action against the government for

breach of one of its contracts in the

United States Court of Claims. That

complaint alleges that the government

wrongfully withheld progress payments due

under the contract, refused to negotiate

adjustments to the contract, knew that

termination of the contract "would

seriously impact on [Futuronics'] ability

(Sa)

to continue as a viable business

concern,” and that Futuronics' inability

to satisfy the contract requirements was

due to the poor technical data furnished

by the government.

| In this action filed on February 23,

1982, Futuronics claims that in March of

1981, the government released internal

DOD correspondence and memoranda, which

allegedly should have been given to

Futuronics as early as 1975 under the

Freedom of Information Act, pursuant to a

request by a subcontractor of Futuronics.

According to appellants, these documents

establish that it was "the McKeen

approach” or the “game plan" to retaliate

against appellants for exposing gross

misfeasance in the government's technical

data package, to drive Futuronics out of

business and destroy the business

reputation of Blanck, and to impede all

(6a)

investigations into this matter by the

means of a deliberately planned cover-up.

These documents include the DOD internal

memorandum from which Futuronics quoted

in its 1976 complaint before the Armed

Services Board of Contract Appeals.

Appellants instituted this action

seeking $36 million in compensatory and

punitive damages against McKeen, Cole,

and Cyr, in their individual capacities,

for allegedly violating their

constitutional rights by conspiring to

destroy the business of Futuronics and

the business reputation of Blanck. The

complaint alleges that appellees knew

that the government's technical data

package was inadequate and in order to

cover up this matter, formulated a “game

plan" to withhold progress payments, to

disseminate false and misleading

information, and to withhold false

(7a)

documents, thereby causing Futuronics to

file for bankruptcy. Appellees moved to

dismiss the complaint, and the district

court granted their motion in part

because appellants' claims were barred by

the applicable statute of limitations. :

II.

On appeal, appellants contend that

their cause of action did not accrue

until March, 1981, and that, therefore,

this action is timely. We disagree.

Appellants allege that their cause

of action arises under the First and

Fifth Amendments and that jurisdiction is

based on 28 U.S.C. Sec. 1331 (a). Since

neither the amendments nor the federal

Statute contain a statute of limitations,

2 Because matters outside the pleadings

were presented to and not excluded by the

district court, we treat the motion as

one for summary judgment. F.R. Civ. P.

12 (b).

(8a)

the most closely analogous state statute

of limitations applies. Johnson v.

Railway Express Agency, 421 u.d. 454, 462

(1975).

We find, and the parties do not

dispute, that the statute of limitations

applicable to this case is Va. Code Sec.

8. @1-243 (197 Rep. Vol.), which

establishes a two-year limitations for

personal injury actions and a five-year

limitations for property damage actions.

In addition, we find that the district

court correctly determined that the time

when a cause of action accrues is

governed by federal, not state, law.

Campbell v. Haverhill, 155 U.S. 6190

(1895); Bridgford v. United States, 483

P.2€ 676, 672 ne@ (4th Cie. 1973).

Furthermore, the district court was

correct in holding that the statute of

limitations does not begin to run until

(9a)

the plaintiff discovers, or by the

exercise of due diligence should have

discovered, the facts forming the basis

of his cause of action. Holmberg v.

Armbrecht, 327 U.S. 392, 396-97 (1946);

Fitzgerald v. Seamans, 553 F.2d 2208 (D.C.

Cir. 1977).

In Fitzgerald v. Seamans, supra, the

plaintiff brought suit in 1974 against

federal officials alleging that they

conspired to violate his constitutional

and statutory rights by wrongfully

terminating his employment with the Air

Force in 1978 in retaliation for his

congressional testimony. The plaintiff

contended that his action was not barred

by the applicable three-year statute of

limitations because the defendants

fraudulently concealed their

unconstitutional acts. The District of

Columbia Circuit held that Fitzgerald's

(18a)

action was time-barred since documents

filed by him in a 1978 proceeding before

the Civil Service Commission

"demonstrate[d] that, by 1978, he had

facts sufficient to put him on notice of

the conspiracy by the Air Force appellees

to retaliate against him for his

congressional testimony.” Id. at 228.

As in Fitzgerald v. Seamans, supra,

documents filed by Futuronics in 1976

before the Armed Services Board of

Contract Appeals and in the Court of

Claims reveal that appellants were "on

notice," at least by that time, of

appellees' alleged constitutional torts.

In 1976, appellants knew that the

government's technical data package was

allegedly inadequate, that adjustments

had been denied and that progress

payments had been withheld because

Futuronics alleged this in its complaint

(lla)

filed in the Court of Claims on November

19, 1976. They knew then of the DOD

internal memorandum concerning the

decision "to step back and let the

contractor go bankrupt" because

Futuronics quoted from it in its

complaint dated October 19, 1976, before

the Armed Services Board of Contract

Appeals. They knew in 1976 that

Futuronics was bankrupt because

Futuronics filed a petition under Chapter

XI of the Bankruptcy Act on January 3,

1975. They knew that the ultimate issue

before the Armed Services Board of

Contract Appeals was "whether the

Government caused [(Futuronics']

bankruptcy because the Board consolidated

all of Futuronics' appeals into one

proceeding for trial and resolution of

that issue.

In the present action, the gravamen

of the complaint is that appellees

(12a)

conspired to cause the financial

destruction of Futuronics. Appellants'

allegations of tortious conduct are

necessarily intertwined with their

contractual claims before the Armed

Services Board of Contract Appeals and in

the Court of Claims. It is not necessary

that appellants knew, in 1976, all of the

persons involved in, or all of the

details of, appellees' alleged torts.

Appellants’ action is time-barred as long

as they were "on notice” of the conduct

about which they complain. Id. at 229.

We hold that appellants had, by 1976,

sufficient information to put them on

notice of the instant cause of action as

time-barred under the applicable statute

of limitations. Because of our holding,

we find it unnecessary to reach the other

issued raised on appeal.

Accordingly, the judgment of the

district court is affirmed.

AFFIRMED.

APPENDIX B

Order, July 23, 1982; Judge Albert Bryan,

Jr., U.S. District Court for the Eastern

District of Virginia, Alexandria,

Virginia

(13a)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

ALBERT A. BLANCK, et al.,

Plaintiffs

CIVIL ACTION No.

82-152-A

V.

CHESTER M. MCKEEN, JR.,

et al., ,

Defendants

ORDER

For the reasons stated from the

bench, it hereby ORDERED that:

l. The motion of the defendants to

dismiss for failure to state a claim upon

which relief can be granted, pursuant to

F.R. Civ.P. 12(b) (6), it is granted, the

court being of the opinion that although

couched in terms of constitutional torts

the complaint asserts no more than common

law torts, liability for which the

defendants are immune. The complaint

also appears to assert contractual claims

over which this court would have no

(14a)

jurisdiction and which have already been

adjudicated or should be adjudicated in

the Court of Claims.

2. The motion of the defendants to

dismiss because the action is barred by

the applicable five year limitation is

granted, it appearing that the last act

of any defendant or any act chargeable to

any defendant causing harm to the

plaintiffs occurred more than five years

prior to the time this action was filed,

and that at least as early as 1976 the

plaintiffs were aware of the substance of

the claims of tortious conduct of which

they now complain, although they may not

have known the details thereof or all of

the persons involved therein.

3. This action is dismissed.

s/Albert V. Bryan, Jr.

nite tates strict Judge

Alexandria, Virginia

July 23rd, 1982

APPENDIX C

Fitzgerald v. Butterfield,

No. 74 - 178 (D OW, April 27, 1979)

(15a)

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 74-178

A. Ernest Fitzgerald,

Plaintif€,

Ve

ALEXANDER P. BUTTERFIELD,

H. ROBERT HALDEMAN

RICHARD M. NIXON,

BRYCE N. HARLOW,

Defendants.

ORDER

(Filed April 27, 1979)

Upon consideration of the

defendants' motions to dismiss or, in the

alternative, for summary judgment, the

opposition thereto, the entire record

herein, and the oral arguments of

counsel, it is hereby

Ordered that the defendants’ motions

to dismiss or in the alternative for

Summary judgment are denied in the

following respects:

(16a)

A. Causes of Action

1. Plaintiff states a cause of

action under the First Amendment to the

United States Constitution based on

defendants' alleged retaliation for

plaintiff's having exercised his rights

of free speech and petition. Mount

Healthy City School Dist. Bd. of Educa-

cation v. Doyle, 429 U.S. 274, 283-84

(1977); Perry v. Sindermann, 408 U.S.

593, 596-98 (1972). In addition, a

damage remedy lies for such a violation.

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 483 U.S. 388

371); Dellums v. Powell, 566 F.2d 167,

194-96 (D.C. Cir. 1977), cert. denied, 46

U.S.L.W. 38803 (U.S. July 3, 1978).

2. Plaintifé States a cause of

action for damages under 5 U.S.C.A. &

7211 (1979 pocket part). See Cort v.

Ash, 422 U.S. 66, 78 (1975). The

(17a)

plaintiff is part of the classi for whose

especial benefit the statute was enacted.

See Act of Aug. 24, 1912, ch. 389, & 6,

37 Stat. 555 (provision originally placed

at end of section protecting civil

servants from capricious removals); 48

Cong. Rec. 4493, 5625-27, 5633-36, 19671-

75 (1912). There exists no indication of

a legislative intent to deny a private

remedy under the provision, and

implication of such a remedy is not

inconsistent with the underlying purposes

of the legislative scheme and impinges on

no area fundamentally the concern of the

states.

3. Plaintiff& states a cause of

action for damages under 18 U.S.C. &

1585. That statute punishes anyone who

"injures any... witness in his person or

property... on account of his testifying

or having testified" before a committee

(18a)

of the Congress. From this phraseology,

it appears that plaintiff is a member of

a class for whose especial benefit the

Statute was, at least in part, enacted.

This conclusion is confirmed by the

provision's legislative history. See S.

Rep. No. 225, 79th Cong., lst Sess.

(1945); H.R. Rep. No. 1143, 76th Cong.,

lst Sess. (1939); 84 Cong. Rec. 9312,

18918-12 (1939). The other factors

listed in Cort v. Ash, Supra, are

Satisfied. Of particular significance is

the fact that 5 U.S.C.A. & 7211 (1979

pocket part) and 18 U.S.C. & 15085 may not

in the context of this case overlap in

all pertinent respects; yet implication

of a private damage remedy under the

first provision but not the second would

not seem to make much logical sense.

Furthermore, the Supreme Court has

emphasized that, in appropriate

(19a)

circumstances, private damage remedies

may be inferred from penal statutes.

Wyandotte Transportation Co. v. United

States, 389 U.S. 191, 201-02 (1967).

4. Plaintiff states a cause of

action under D.C. law for intentional

interference with (existent and

prospective) economic advantage. Carr v.

Brown No. 12922, slip op. at 8-18 (D.C.

Ct. App. Nov. 24, 1978);Dunn v. Cox, 163

A. 2d 609, 611 (D.C. Mun. App. 1968);

Alfred A. Altimont, Inc. v. Chatelain,

Samperton & Nolan, 374 A.2d 284 (D.C. Ct.

App. 1977).

5. Plaintiff states a cause of

action under D.C. law for intentional

infliction of mental distress by extreme

and outrageous conduct. Clark v.

Associated Retail Credit Men, 1905 F.2d

62, 64-55 (App.D.C. 1939);Mosely v. Bank

of Virginia, No. 5573-77 (D.C. Super. Ct.

June 19, 1978).

(28a)

B. The service of process effected on

defendants Nixon and Harlow was proper,

Fed. R. Civ. P. 4(d)(7), (e) & (£)7 D.C.

Code && 13-423(a) (3), 13-424, 13,431;

United States v. First National City

Bank, 379 U.S. 378, 381 (1965), and this

court has personal jurisdiction over

those two defendants as well, see

International Shoe Co. v. Washington, 326

Goodwin, 569 F. 2d 1, 8-18 (D.C. Cir.

1977); D.C. Code & 13=-423(a) (3); 2

Moore, Federal Practice 4.25(7).

C. Nixon

l. By reason of the doctrine of

"fraudulent concealment," this suit is

not time-barred as against defendant

Nixon. Fitzgerald v. Seamans, 553 F. 2d

220, 228-29 (D.C. Cir. 1977). It was not

until June 1978 that plaintiff discovered

facts so sufficiently implicating Nixon

(21a)

in the subject matter of this case as to

meet the requirements of Fed. R. Civ. P.

ll; with due diligence plaintiff could

not have discovered these facts at any

earlier date.

2. To establish either arguably

applicable immunity defense, the

President must show that he was acting

"within the outer perimeters" of his

responsibilities. Butz v. Economou, 46

U.S.L.W. 4952 (June 29, 1978); Barr v.

Matteo, 368 U.S. 564 (1959); Expeditions

Unlimited Aquatic Enterprises, Inc. v.

Smithsonian Institution, 566 F.2d 289

(D.C. Cir. 1977) (en banc), cert. denied,

46 U.S.L.W. 3803 (U.S. July 3, 1978). At

this state of the litigation, the Court

Cannot conclude that Nixon was acting

within the outer perimeters of his duties

when he performed the acts which the

complaint alleges he performed.

(22a)

a. There exist genuine issues of

fact as to Nixon's conduct in

connection with the subject matter

of this suit.

b. By statute and regulation, the

President had no authority to hire,

discharge or interfere with the

employment of an employee such as

Fitzgerald. 5 U.S.C. & 7512 (1976);

19 U.S.C. & 8812(e); 5 C.F.R. & 6.3;

Fitzgerald v. Hampton,467 F.2d 755,

762 (D.C. Cir. 1972).

c. Other statutory provisions as

well bar the President from doing

what he is alleged to have done. 5

U.S.C.A. & 7211 (1979) pocket part);

18 U.S.C. & 1565.

Therefore, at this stage, the Court will

not decide whether defendant Nixon may be

protected by an absolute or qualified

immunity defense.

(23a)

3. The issues raised against

defendant Nixon are justicable under

Baker v. Carr, 369 U.S. 186 (1962).

Arguments flowing from the separation of

powers or resting upon the risks inherent

in permitting civil damage actions

against past or present Presidents for

acts performed while in office are more

appropriately addressed when determining

the kind of immunity from suit which the

President should enjoy.

D. Harlow

l. Plaintiff's claims against

defendant Harlow are not time-barred.

Only sometime after October 1977 did

plaintiff find out about Harlow's

Conversations with Seamans during the

spring of 1969. Fitzgerald Affidavit of

July 5, 1978, 6; Mollenhoff Affidavit of

Aug. 1, 1978, 7. Plaintiff could not

have with due diligence discovered this

information prior to that date.

(24a)

2. Genuine issues of fact remain

as to the scope of Harlow's

responsibilities, as to the nature of his

actions in the Fitzgerald matter

beginning in the spring of 1969, and as

to whether such actions as he did take

were performed in good faith.

Accordingly, summary judgment cannot be

granted at this time to defendant Harlow

based on any claim of immunity, whether

he be entitled to assert an absolute or

qualified immunity.

E. Butterfield

l. Plaintiff's claims against

defendant Butterfield are not time-

barred. Discovery has not revealed any

further information bearing on

plaintiff's due diligence since the

opinion of the Court of Appeals in

Fitzgerald v. Seamans, supra.

2. Genuine issues of fact remain as

(25a)

to the scope of Butterfield's

responsibilities, as to the nature of his

actions in the Fitzgerald matter

beginning in the spring of 1969, and as

to whether such actions as he did take

were performed in good faith.

Accordingly, summary judgment cannot be

granted at this time to Butterfield by

reason of any immunity defense, whether

he be entitled to claim an absolute or a

qualified immunity.

ORDERED that defendant's motions to

dismiss or, in the alternative, for

summary judgment are granted in the

following respect

Plaintiff's action against defendant

Haldeman is time-barred. The statute of

limitations was no longer tolled by

operation of the "fraudulent concealment"

doctrine once plaintiff had sufficient

facts to put him on notice that he had a

(26a)

potential claim. See Emmett v. Eastern

Dispensary & Casualty Hospital, 396, F.2d

Westinghouse Electric Corp. v. City of

Burlington, Vermont, 351 F.2d 762, 764

(D.C. Cir. 1965); Cole v. Kelley, 438 F.

Supp. 129, 139 (C.D. Cal. 1977).

Plaintiff filed his First Amended

Complaint naming Haldeman on June 27,

1977. Plaintiff, however, knew that

Haldeman was actively involved in the

Fitzgerald matter after having taken the

deposition of Butterfield on June 15,

1974. See Butterfield deposition at 260,

271, 298, 324. See also Butterfield

Memorandum of Jan. 20, 19780, addressed

specifically to Haldeman (Discovered by

Plaintiff in August, 1973).

ORDERED that, plaintiff having

withdrawn his claim under the Ninth

Amendment to the United States

(27a)

Constitution, his claim for

unconstitutional and common-law invasion

of privacy, and his claims under 42

U.S.C. && 1985(3) & 1986, these claims be

and hereby are dismissed; and it is

further

ORDERED that, since the issue is

currently before the Supreme Court, see

Davis v. Passman, 571 F.2d 793 (5th Cir.

1978) (en banc), cert. granted, 47

whether or not, under the rationale of

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, supra, a

private damage remedy may be based on a

Fifth Amendment violation, this Court

will not now decide whether plaintiff

States a cause of action under the Fifth

Amendment.

/s/ GERHARD GESELL

United States District Judge

April 26, 1979

APPENDIX D,

"GAME PLAN"

"SPEAR CARRIERS"

COPY OF HANDWRITTEN INTERNAL

GOVERNMENT DOCUMENT

DISCOVERED MARCH 1981

(28a)

Aug. 7, 1973 Telcon - 3783

FROM: Strohmenger (AVN 998-1595)

(a) Sec bought Game Plan

(b) Strohmenger must prepare a

massive “paper” to pass through General

Cheney and General Foster at Fort

Monmouth. A copy of this “paper” will be

flown to AMC tomorrow.

(c) ECOM “game plan" is to

negotiate with Contractor NLT Friday of

this week, 18 Aug. 73.

(d) ECOM wants Fallon (ACO) at Ft.

Monmouth for preliminary briefing on

Thursday 9, Aug. 73 and to set in on the

negotiation on Friday.

(e) STOP Work Order will have t/b

agreed by K-since not in Contract.

FALLON: Questions to Strohmenger

When will Contractor be contacted?

(29a)

Gen. Cheney (or his office) will do

so to-morrow or following day.

(a) Bob Wacks (Our Hdq) advised us

this morning of

(1) Phelan meeting 1108 today

(2) Possible Conte meeting

tomorrow DCASR Boston thinks “spear

carriers" meetings s/b completed

(successfully) before such actions.

(b) ECOM would also like a pricing man

from DCASR Bos or DCAA "who knows the

Situation at Futuronics" to acompany ACO.

ACO said he would call Strohmenger back.

Reviewed above w/Col. Packard and H.

Sullivan in L/Col Packards

Aug. 7, 1973 - Telecon approx 11808 hours

Bob Wacks CAS to F.T. Fallon & Herb

Sullivan.

(1) Mr. Huggerd agrees to try Gen McKeen

approach.

(2)

(3)

(4)

(5)

(30a)

Blair (AMC legal) meeting ll o'clock

today in/Mr. Phelan, Minority Counsel

to Sel. Com for SB.

Possible meeting to-morrow w/Mr.

Conte.

DCASR Bos should not contact

(a) DCAA

(b) DCASD, Garden City, LI,

until “spear carriers" have okayed

(or at least not objected to) the

McKeen approach.

Bob Wacks inquiry (presumably for

Bert Blair): Does DCASR Boston still

lack information from contractor to

Support Prog. Payments in house?

DCASR Boston answer: Yes, the

information has not y