Petition for Writ of Certiorari — Welcker v. United States, 106 S. Ct. 83 (1985) (No. 84-1960)

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Office-Supreme Court, U.S.

FILED

84-1960 JUL 10 1985

ALEXANDER L. STEVAS,

No e 84-

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

STANFORD MONROE WELCKER,

Petitioner,

—- versus -

THE UNITED STATES,

Respondent.

PETITION

For A Writ Of Certiorari To The United

States Court Of Appeals For The Federal

Circuit

FREDRIC J. GROSS

7 East Kings Highway

Mt. Ephraim, New Jersey 908959

(609) 931-1511

Attorney for Petitioner it

. —

- QUESTION PRESENTED -

Whether this Court’s decision in

United States v. Kubrick, 444 U.S. 111

(1979), holding that a claim against

the United States accrues when a

reasonable plaintiff should know of

both the injury and its cause, applies

to causes of action not sounding in

tort?

- TABLE OF CONTENTS -

Question Presented page i

Table of Authorities iii

Petition 1

Opinions Below 2

Jurisdiction 2

Statutes Involved 3

Statement of the Case o

A. Public Events 4.

B. Privacy Act Disclosures 8

C. Judicial Proceedings 11

Reason for Granting the Writ:

There is conflict and

confusion among the circuits

as to when some federal

causes of action accrue 18

Conclusion 27

Appendix following 27

A. Opinion Below la

B. Claims Court Opinion 26a

C. Judgment Below 33a

D. Order Denying Rehearing 34a

- id -

- TABLE OF AUTHORITIES -

Cases:

Barrett v. United States,

689 F.2d 324 (2d Cir. 1982),

cert. den., U.S. __ (1983) 19,22

Braude v. United States,

585 F.2d 1049 (Ct. Cl. 1978) 12,24

Diminnie v. United States,

728 F.2d 301 (6th Cir. 1984) 16

Fitzgerald v. Seamans,

553 F.2d 220 (D.C. Cir. 1977) 19

Hudson v. Palmer, U.S.

104 S.Ct. 3194, 82 L.Ed.2d 39 393 (1984)16

Raddatz v. United States,

75® F.2d 791 (9th Cir. 1984) 25

Sullivan v. Department of the Navy,

720 F.2d 1266 (Fed. Cir. 1983) 13-17,24

United States v. Kubrick,

444 U.S. 111 (1979) passim

Ware v. United States,

626 F.2d 1270 (Sth Cir. 1980) 20-22

- iii -

Statutes:

J.S.C.

U.S.C.

552a (Privacy Act)

1254(1)

1491 (Tucker Act)

2401(a)

242%4(b)

2501

2671 (F.T.C.A.)

1983

- iv -

a a ry

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1984

STANFORD MONROE WELCKER, Petitioner,

° Vou =

THE UNITED STATES, Respondent.

- PETITION -

»s TO THE HONORABLE, THE CHIEF -

JUSTICE OF THE UNITED STATES AND THE

ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Stanford Monroe Welcker hereby

petitions that a writ of certiorari

issue to review the judgment of the

United States Court of Appeals for

the Federal Circuit at docket number

84-1392.

PETITION FOR CERTIORARI page 2

- OPINIONS BELOW -

The opinion of the court of

appeals (1a) is reported at 752 F.2d

1577. The opinion of the United

States Claims Court (26a) is not

reported.

- JURISDICTION -

The judgment of the court of :

appeals (33a) wes entered on January

22, 1985. An order denying a petition

for rehearing (34a) was entered on

March 11, 1985.

Certiorari judisdiction exists

pursuant to 28 U.S.C. § 1254(1).

PETITION FOR CERTIORARI page 3

- STATUTES INVOLVED -

28 U.S.C. § 2401(a) provides, in

pertinent part, "[E]very civil action

commenced against the United States

shall be barred unless the complaint

is filed within six years after the

right of action first accrues."

28 U.S.C. § 2501 provides, in

pertinent part, “Every claim of which

the United States Claims Court has

jurisdiction shall be barred unless

the petition thereon is filed within

six years after such claim first

accrues."

PETITION FOR CERTIORARI page 4

- STATEMENT OF THE CASE -

A. Public Events

Stanford Monroe Welcker, a civil

service draftsman at Watson Air Force

Laboratory, was charged during the

McCarthy Era with disloyalty and

thereupon suspended from work without

pay. He exercised his right under

Pub.L. 77-808 § 3, 56 Stat. 1053 (3a),

to a hearing.

One disputed issue fn the ensuing

proceedings was whether Mr. Welcker

had attended a few meetings of the

Walt Whitman Club ac an adherent to

its communistic philosophy, or had

gone to them as an informant for the

FBI and the Army. A related issue was

whether Mr. Welcker had been at the

PETITION FOR CERTIORARI page 5

local YMCA on other occasions to

attend Walt Whitman Club meetings or

for innocuous activities as vice

president of a labor union which also

rented meeting space at the YMCA.

After an initial hearing at the

Watson Laboratory, a loyalty-security

board ruled that Mr. Welcker was not

disloyal but that he was a security

risk. Welcker’s suspension from work

thereupon became a discharge.

An appeal was taken to the Air

Force Central Loyalty-Security Board.

It conducted a hearing at the Pentagon

on July 27, 1950.

Evidently the appeal board was

impressed most favorably with Mr.

PETITION FOR CERTIORARI page 6

Welcker’s presentation.' Even though

Welcker’s attorney allowed that

because of the outbreak of war in

Mr.

Mr. Welcker did not just account for his own

actions. He also suggested that any contrary

information which the board had received, if

not the product of mistake, was surely the

product of racism.

Welcker had been outspoken in demanding full

compliance with President Truman's Executive

Order ending segregated military facilities.

For example, he had complained to the commander

of Fort Monmouth about the exclusion of blacks

from recreation facilities. Mr. Welcker also

had been president of the local NAACP chapter,

which had grown under his leadership to 800

members. In that capacity, he had blocked

efforts of communist groups to infiltrate NAACP

activities, and he had been singularly

responsible for the peaceful, voluntary

integration of the local public school systems.

These activities were not exactly appreciated in

all quarters, and Mr. Welcker long had assumed

that the false allegations of subversive

activities which cost him his career had been

the product of racism. As plaintiff made clear

in an affidavit of record, he had “never

imagined, let alone believed, that F.B.I.

agents had intentionally misled the members of

the [Air Force Central Loyalty-Security] board,

or that they had been directed to do so by J.

Edgar Hoover."

PETITION FOR CERTIORARI page 7

Korea all doubts should be resolved in

favor of the government, the board saw

fit to withhold any decision for two

and a half years while it made a

number of ex parte inquiries of the

FBI.2 Then, in 1953, after reviewing

the FBI’s secret post-hearing

submissions, the Air Force made a

final determination, that Mr. Welcker

was loyal to his country but

nonetheless was a security risk. The

earlier discharge from employment

thereupon became permanent.

Documents disclosed under the Privacy Act make

specific reference to one post-hearing inquiry

prior to September 20, 1951, and to another one

dated June 10, 1952. The Privacy Act

disclosures were far from complete, and the

trial court would not compel further

disclosures. Hence there may well have been

additional post-hearing inquiries addressed to

the FBI.

PETITION FOR CERTIORARI page 8

B. Privacy Act Disclosures

Although the Air Force appeal

board had every reason to assume that

in responding to its inquiries the FBI

had adhered to its usual role as a

neutral investigator, that simpiy was

not so. Partial disclosures of FBI

files first obtained in 198i under the

acgis of the Privacy Act of 1974, 5

U.S.C. § 552a, demonstrate this.

These documents show that J. Edgar

Hoover told FBI field offices that he

only wanted information reflecting

"adversely" on petitioner’s loyalty.

Hoover withheld from the Air Force

information supporting Mr. Welcker’s

testimony and in its place substituted

fabricated accounts which were

designed to undermine the Air Force

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PETITION FOR CERTIORARI page 9

board’s search for the truth.?

In particular, the Newark FBI

office informed FBI headquarters that

during observation of activities at

the YMCA there had been "some general

confusion" between the Walt Whitman

Club and Welcker’s union, and that the

3. The reason for the FBI Director's animus

toward Petitioner is not clear. What is clear

is that Hoover's efforts at obfuscation

commenced prior to the Watson Lab hearing.

Specifically, Petitioner’s attorney had written

to the FBI director seeking confirmation that

Mr. Welcker had indeed attended Walt Whitman

Club meetings in 1944 at the behest of the FBI.

Hoover, however, received word that an Air

Force general wanted "to dismiss Welcker .

and not have the Bureau agent or Army officer

[who had recruited Welcker as an informant]

testify" because this might "give Welcker or

his attorney the opportunity tc make ‘another

Coplon case’ of this at the hearings.” Hoover

then drafted a response to counsel’s request

which went out over the signature of an

assistant attorney general. The response

falsely denied that Petitioner's attendance at

Walt Whitman Club meetings “was at the request

of this Department, and for the benefit of the

Government."

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PETITION FOR CERTIORARI page 10

resulting list of surveilled

subversives which had been sent to the

Air Force was known to be unreliable.

Hoover concealed this crucial

information from the Air Force and

manufactured for it a story that gave

exactly the opposite impression.

Specifically, the FBI Director advised

the Air Force that when Welcker was

first contacted by the FBI and Army

Intelligence, he had been told "that

they were not interested in ris union

activities or the activities of the

union itself." There is no evidence

which supports that assertion.

Mr. Hoover also directed field

agents to deny, falsely, that

Petitioner had ever been an informant,

and he instructed the agents not to

PETITION FOR CERTIORARI page 11

submit to the Air Force any material

at variance with an affidavit of Army

Intelligence Lieutenant Allen, because

the Air Force was trying to "resolv[e]

discrepancies between Welcker’s

testimony and the statement of Allen."

Hoover even asked for documentation

that would portray Welcker’s attorney

to the Air Force as a communist.

C. Judicial Proceedings

After reviewing the materials

obtained from the FBI under the

Privacy Act, Petititoner promptly

brought suit in the Court of Claims.

Invoking jurisdiction provided by 28

U.S.C. § 1491, he complained of

wrongful discharge from civilian Air

Force employment and demanded back pay

and related equitable relief.

PETITION FOR CERTIORARI page 12

Welcker’s petition was dismissed

on summary judgment by the successor

court, the United States Claims Court.

Relying primarily upon a pre-Kubrick

decision, Braude v. United States, 585

F.2d 1049 (Ct. Cl. 1978), it held that

limitations had long since run.

On appeal, Petitioner allowed that

he was untimely as to most causes ofr

action relating to his loss of

“emp lognent, but insisted that he

brought suit on time as to one cause

of action. Specifically, since the

FBI had taken a partisan interest in

the outcome, its post-hearing ex

parte contacts with the decision-

maker, of which Petitioner had no

contemporaneous knowledge, deprived

Mr. Welcker of a fair hearing in

PETITION FOR CERTIORARI page 13

contravention of the Due Process

Clause of the Fifth Amendment.

Sullivan v. Department of the Navy,

720 F.2d 1266, 1274 (Fed. Cir. 1983).4

The existence of Petitioner’s

Sullivan cause of action could not

have been discovered prior to the

Privacy Act disclosures, because the

proofs that the FBI was not

disinterested in the outcome lay

solely in internal FBI documents which

had never been available to the Air

Force, let alone to Mr. Welcker.

Consequently, Petitioner argued on

appeal that his Sullivan claim did not

These secret post-hearing communications had

been especially prejudicial, because the FBI

conveyed information known to be false and

misleading, and did so in order to frustrate

the truth-finding process.

“ei ati Nhat OS ts

PETITION FOR CERTIORARI page 14

accrue until he could obtain Privacy

Act access to internal FBI documents,

and therefore this particular cause of

action was not time barred.

The court of appeals disagreed.

Painting with a broad brush, it held

that in 1953 Petitioner knew he had

been fired, knew he had been fired for

being a security risk, and knew that

this was done because of his

attendance at Walt Whitman Club

meetings. Since Petitioner could have

litigated his discharge on a number of

grounds during the ’fifties, the

Federal Circuit would not entertain

any challenge at this late date.

The court of appeals, therefore,

implicitly held that it made no

difference that each of the facts

PETITION FOR CERTIORARI page 15

essential to a Sullivan cause of

action? -- that the FBI at its highest

>. The panel below implied that Sullivan should

be understood to require that if ex parte

contacts are not in violation of a statute or

regulation, there is no constitutional claim

(2@a-22a). The Sullivan decision, however,

unequivocaily held that ex parte contacts with

a decision-maker vy a non-neutral party worked

a per_se denial of due process: "We hold that

Westbrock’s improper ex parte communications

were not only unfair, but also denied

Petitioner his rights under the due process

clause of the Constitution", (720 F.2d at 1274).

This holding is merely a special case of the

general rule that the right to a hearing always

implies the right to a meaningful hearing.

Sullivan's constitutional holding, of course,

was binding precedent upon the panel below. It

evidently was recognized as such, for the

panel's opinion never addresses the FBI's pust-

hearing communications to the Air Force.

Petitioner premises his Sullivan claim on those

communications, and not on the pre-hearing

reports discussed in the opinion. The lengthy

post-hearing inquiry made by the Air Force

demonstrates that Petitioner had responded

effectively to the initial accusations.

—s

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PETITION FOR CERTIORARI page 16

level® had assumed a partisan role and

had intentionally corrupted the fact-

inding process in its post-hearing

responses to Air Force inquiries --

was not known and could not have been

obtained until many years after Mr.

Welcker was discharged. Time

The documents which Petitioner proffered to

the trial court made clear that the post-

hearing FBI submissions, unlike the evidence

upon which the disloyalty charge originally had

been based, were the product of official policy

from on high and did not reflect random,

unauthorized acts on the part of low level

employees. Cf. Hudson v. Palmer, U.S. _,

104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984)(no

liability under 42 U.S.C. § 1983 for random,

unauthorized acts). This may be significant to

the limitations question presented, since in

some cases at least one one court of appeals

engrafts onto Kubrick two additional

requirements: "that the plaintiff must show

fraudulent concealment of the critical facts

before accrual will be postponed,” and "that

the United States itself played a wrongful role

in concealing the culprit’s identity."

Diminnie v. United States, 7/28 F.2d 301, 305

(6th Cir. 1984).

PETITION FOR CERTIORARI page 17

therefore ran ‘out on the Sullivan

cause of action long before the day

arrived when Petitioner "need only

have made inquiry among [lawyers] with

average training and experience in

such matters to discover that he

probably had a good cause of action."

United States v. Kubrick, 444 U.S.

111, 122-23 (1979).

;

PETITION FOR CERTIORARI page 18

REASON FOR GRANTING THE WRIT

THERE IS CONFLICT AND CONFUSION

AMONG THE CIRCUITS AS TO WHEN SOME

FEDERAL CAUSES OF ACTION ACCRUE

In United States v. Kubrick, 444

U.S. 111 (1979), a medical malpractice

case arising under the Federal Tort

Claims Act, 28 U.S.C. § 1371, this

Court specified the point at which a

Claim against the United States

accrues and limitations therefore

begins to run. Kubrick held that when

a plaintiff is in "possession of the

critical facts that he has been hurt

and who has inflicted the injury," he

is charged with knowledge of both the

fact of the injury and its causation

(444 U.S. at 122).

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PETITION FOR CERTIORARI page 19

A. Most of the circuits apply

Kubrick to all types of federal

claims, and hold that when the fact of

injury is known but its causation is

not known, a claim against the United

States has not accrued and limitations

therefore has not begun to run. See

Barrett v. United States, 689 F.2d

324, 327 (2d Cir. 1982), cert. denied,

U.S. » 189 B.Ct. 5111, T7

L.Ed.2d 1366 (1983) (collecting

cases). Barrett, 689 F.2d at 327,

specifically adopts the pre-Kubdrick

holding of the District of Columbia

Circuit in Fitzgerald v. Seamans, 553

F.2d 220, 228 (1977):

Read into every federal

statute of limitations...

is the equitable doctrine

that in case of defendant’s

fraud or deliberate

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PETITION FOR CERTIORARI page 20

relating to his wrongdoing,

time does not begin to run

until plaintiff discovers, or

by reasonable diligence could

have discovered the basis of

the lawsuit.

B. In Ware v. United States, 626

F.2d 1270 (5th Cir. 1980), the

plaintiff immediately knew that his

cattle had been destroyed and that

this was done by the United States

Department of Agriculture because it

had determined that the cattle had

tuberculosis. Later, Ware learned .

that 243 of the 246 destroyed cattle

had been misdiagnosed and should not

have been destroyed.

Faced with these facts, the Fifth

Circuit read Kubrick as being

applicable only to medical malpractice

cases, which the court viewed as being

PETITION FOR CERTIORARI page 21

sui generis (626 F.2d at 1284 n.4).

The Ware court therefore eschewed

applying Kubrick when it determined

that Ware’s claim of negligent

destruction of his herd first accrued.

Nevertheless, it held that limitations

did not begin to run until Ware,

learned the singularly essential fact

that the tuberculosis diagnosis had

been faulty (626 F.2d at 1283-85).

C. The Ware limitations holding

is in divect conflict with the holding

below. Mr. Ware knew at the time of

the slaughter that his cattle had been

killed, why they were killed, and who

killed them, just as surely as Mr.

Welcker knew in 1953 that he had been

fired, why he had been fired, and who

fired him. Neither of these

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PETITION FOR CERTIORARI page 22

plaintif"°s, however, immediately knew

the causal facts which would probably

sustain a claim against the United

States. Mr. Ware had no immediate

reason to suspect a laboratory error;

Mr. Welcker had no reason to suspect

that during his long wait for a

decision, the FBI intentionally

obstructed the Air Force’s efforts to

administer justice and thereby

deprived Petitioner of a fair hearing.

The only plausible way to

harmonize Ware and the decision below

would be to Nold that claims sounding

in tort are governed by a special rule

of accrual. Barrett, as noted above,

rejects that proposition. Petitioner

knows of no published decision

explicitly accepting it.

PETITION FOR CERTIORARI page 23

However, at oral argument in the

court below, Judge Davis repeatedly

admonished counsel against citing to

tort cases because they arise under a

different statute.’ Consistent with

Judge Davis’ remarks, no published

opinion of the Federal Circuit, its

predecessor courts, or the Claims

Court, cites to Kubrick as a precedent

in construing limitations. Those

The Federal Tort Claims Act involves no more

liberal waiver of sovereign immunity than does

the Tucker Act. No matter which act has been

invoked, the courts consistently hold that the

sovereign’s waiver must be narrowly construed.

If there nonetheless is a difference in accrual

principles, the statute of limitations

governing tort claims, 28 U.S.C. § 2401(b),

would seem to leave less leeway for tolling of

accrual than do the statutes applicable to

Petitioner’s case, 28 U.S.C. 8§ 2401(a), 2501.

Section 2401(b) provides that tort claims not

timely filed shall be "forever barred," whereas

no such language of repose applies to the claim

at bar.

PETITION FOR CERTIORARI page 24

courts instead take as their

controlling precedents pre-Kubrick

Gecisions which do not sound in tort,

such as Braude, supra. See, e.g.,

lila.

D. The Federal Circuit stopped

its analysis once it was satisfied

that Petitioner could have litigated

the truthfulness of adverse evidence

disclosed at the hearings as well as

the constitutionality in general of

loyalty-security hearing procedures at

the time he was discharged. The court

refused to determine separately the

accrual date for Petitioner’s

Sullivan claim, which is based solely

upon the FBI’s post-hearing reports.

This failure to independently

ascertain the time of accrual of each

PETITION FOR CERTIORARI page 25

cause of action conflicts with the

Ninth Circuit’s decision in Raddatz v.

United States, 750 F.2d 791, 795-97

(1984). There, the court of appeals

reversed a grant of summary judgment

to the government on one cause of

action, because even though a related

cause of action was time barred, this

one had accrued at a subsequent date.

E. It is evident from the

foregoing that conflicts and confusion

have emerged in the post-Kubrick

efforts of the courts of appeals to

determine when claims against the

United States accrue. Therefore, in

addition to offering this Court an

opportunity to correct the manifest

injustice done Petitioner ata

troubled time in this Nation’s

nS it

PETITION FOR CERTIORARI page 26

history, this case provides an

appropriate vehicle for clarifying an

important and recurring question

involving claims against the United

States, namely, whether the Kubrick

criteria for accrual are applicable to

all causes of action.

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PETITION FOR CERTIORARI page 27

CONCLUSION

For the foregoing reasons, a writ

of certiorari should issue to review

the judgment of the United States

Court of Appeals for the Federal

Circuit at docket number 84-1392.

Respectfully submitted,

} dud afore

FREDRIC J. GROSS

Attorney for Petitioner

June 10, 1985.

Opinion Below la

OPINION, UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

January 22, 1985

Welcker v. United States, No. 84-1392

Before DAVIS, KASHIWA and NIES, Circuit Judges.

DAVIS, Circuit Judge.

Stanford Monroe Welcker appeals from

a decision of the United States Claims

Court, H. Robert Mayer, Judge, granting

the Government’s motion for summary

judgment. Appellant seeks inter alia,

an award of back pay under the Tucker

Act for his allegedly wrongful discharge

from civilian employment with the Air

Force in 1950. The court ruled that

appellant’s case, filed in 1982, was

barred by the six-year statute of

limitations on suits brought under the

Tucker Act. 28 U.S.C. § 2501 (1982). We

affirm.

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Opinion Below 2a

For the purposes of this motion for

summary judgment, the Government does

not take issue with appellant’s version

of the hard facts, which is as follows:

Following a tour with the Navy during

world War II, appellant worked as a

civilian draftsman in the Air Force’s

Watson Laboratories in Monmouth, New

Jersey. Appellant maintains that, in

1944, an FBI agent and an Army

Intelligence officer approached

appellant and asked him if he would

infiltrate and report on the activities

of the Walt Whitman Club, a community

organization suspected of supporting

communist activities. Appellant states

that he agreed, and attended a number of

club meetings at the local YMCA.

In 1949, the Air Force informed

appellant that he was suspended for

disloyalty to the Government pursuant to

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Opinion Below 3a

Public Law 77-808.' Welcker obtained

counsel, and appealed the decision to

the Laboratory’s loyalty-security board.

1. Pub. Law No. 77-808, 56 Stat. 1053 (1942),

states in pertinent part:

SEC. 3 The provisions of section 6 of the Act

of August 24, 1912 (37 Stat. 555; U.S.C., title

5, sec. 652) [pertaining to procedures for the

removal of Government employees], shall not

apply to any civil-service employee of the War

or Navy Departments or of the Coast Guard, or

their field services, whose immediate removal

is, in the opinion of the Secretary concerned

warranted “by the demands of national security,

but nothing herein “shall be construed to

repeal, modify, or suspend the proviso in that

section. Those persons summarily removed under

the authority of this section may, if in the

opinion of the Secretary concerned, subsequent

investigation so warrants, be reinstated, and

if so reinstated may, in the discretion of the

Secretary concerned, be allowed compensation

for all or any part of the period of such

removal in an amount not to exceed the

difference between the amount such person would

normally have earned during the period of such

removal, at the rate he was receiving on the

date of removal, and the interim net earnings

of such person: Provided, That within thirty

days after such removal any such person shall

have an opportunity personally to appear before

the official designated by the Secretary

concerned and be fully informed of the reasons

for such removal, and to submit, within thirty

days thereafter, such statement or affidavits,

or both, as he may desire to show why he should

be retained and not removed.

This Statute has been repealed. Pub. Law No. 8i-

Opinion Below 4a

While the case was pending, appellant’s

attorney sent a letter to then FBI

Director J. Edgar Hoover, requesting

that the FBI confirm that appellant’s

participation in the Walt Whitman Club

was at the behest of the Government.

Hoover referred the matter to the main

Justice Department. The Attorney

General’s office responded to

appellant’s counsel (in September 1949)

by denying that the Government had

recruited seet tent as an informant.

The Government claimed that appellant

was already a member of the Walt Whitman

Club at the time of his interview with

the FBI agent and Army Intelligence

officer. According to the Government’s

letter, a third, unnamed individual

"interested in Mr. Welcker’s welfare"

had suggested that the FBI interview

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Opinion Below 5a

appellant in an effort to persuade him

to leave the communist fold. The

Justice Duper teen's letter added that

"Mr. Welcker never made any report

either written or oral, and when

questioned regarding specific matters

his answers were either evasive or

erronsous."

The loyalty-security board held a

hearing late in 1949, but refused to

allow appellant either to examine the

reports of the FBI investigation or to

cross-examine Government witnesses. At:

the hearing, in response to questions

from his attorney, appellant related his

view of the events. surrounding his

participation in the Walt Whitman Club’s

activities, and denied being a

communist. The loyalty-security board

concluded that appellant was not

disloyal; the board recommended,

however, that the Air Force dismiss

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Opinion Below 6a

appellant in the interest of national

security. In 1950, after another

hearing, the Air Force Central Loyalty-

Security Board affirmed this

determination, as did the Secretary of

the Air Force, thereby converting

appellant’s suspension into a permanent

termination. Appellant instituted no

legal action at that time.

In 1979, after Congress passed the

Privacy Act (5 U.S.C. § 552a), appellant ©

requested a copy of his FBI files. The

FBI provided portions of these files in

1981. According to appellant, the

documents demonstrate that the FBI and

the Justice Department purposely

withheld from the Air Force their true

role surrounding appellant’s

participation in the Walt Whitman Club.

Moreover, it is asserted that the FBI

failed to inform the Air Force that

agents observing the club’s members

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Opinion Below Ta

often failed to distinguish between

those entering the YMCA for club

meetings and those entering for other

purposes, including meetings of the

union representing appellant and other

government employees. The entire thrust

of the materials, says appellant, shows

that the FBI, in ex parte communications

to the Air Force loyalty-security board,

falsified its reports of appellant’s

activities, a state of affairs which

appellant says he discovered only in

1981 when the FBI released his files.

The Claims Court ruled that, on the

basis of the undisputed facts, appellant

should have been aware of the FBI’s

alleged duplicity at the time of the

loyalty-security board hearings

themselves (1949-1950), at which the Air

Force informed appellant that the FBI

disputed his version of the story. The

court pointed particularly to

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Opinion Below 8a

appellant’s Privacy Act request as

evidence that appellant had pieced

together his view of the FBI’s actions

long before appellant saw his file. In

his request, appellant stated:

The tenor of the questions put to me

by the members of the loyalty-

security board indicated that the

reports filed by Hughes and Allen

[the FBI and Army Intelligence

agents] were at substantial variance

from my sworn testimony .... I

infer from the various board members’

questions that Hughes and/or Allen

destroyed some of the informant

reports I provided them, and

substituted fabricated accounts of my

activities. These were designed to

convey the impression that I was

concealing useful information and

providing false information as to the

left-wing activities they had asked

me to monitor.

Since appellant suspected that he had

been discharged on fabricated evidence

approximately thirty-one years before

bringing this suit, the court ruled that

plaintiff’s action was time-barred on

the authority of Braude v. United

States, 585 F.2d 1049 (Ct. Cl. 1978),

discussed infra.

Opinion Below 9a

Welcker concedes that actions under

the Tucker Act are subject to a six-year

statute of limitations, but relies on

the rule that "the running of the

statute will be suspended when an

accrual date has been ascertained, but

plaintiff does not know of his claim."

Japanese War Notes Claimants

Association v. United States, 373 F.2d

356, 358-59 (Ct. Cl. 1967), cert.

denied, 590 U.S. 975 (1968). Asa

judicial interpretation of a legislative

enactment, the rule is strictly and

narrowly applied: "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." Id. at 359 (footnote omitted).

Appellant argues that he could not have

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Opinion Below 10a

known of the FBI’s actions prior to

passage of the Privacy Act and the

submission of his request under that

legislation.

The undisputed facts squarely belie

that contention. The letter his then

attorney received from the Department of

Justice in 1949 plainly shows that the

Government denied that appellant was a

Government informant or supplied any

useful information, and appellant’s own

1979 statement (quoted supra) asking for

his files demonstrates that at the time

of the 1949-19590 hearings he already

thought that (1) the FBI reports were

very different from his own views of

what had occurred and (2) the FBI

reports hac been fabricated against him.

Clearly, appellant was aware in 1949-

195@ that he had been dismissed from the

federal service on grounds that he

himself considered to be wrong and

Opinion Below lla

improper.

This was enough to start the running

of the six-year span of limitations.

Cases from our predecessor court and

other circuits firmly establish that the

statute of limitations is tolled only so

long as the plaintiff is unaware of the

wrong committed. "Defendant is not

required to wait until plaintiff has

started substantiating his claims by the

discovery of evidence. Once plaintiff

is on inquiry that is has a potential

claim, the statute can start to run."

Japanese War Notes Claimants Associ-

ation, supra.

In Braude, supra, the Government

summarily dismissed plaintiff from her

position in 1951 pursuant to a loyalty-

security program similar to the one

under which appellant lost his job. The

Government informed petitioner at the

time that her dismissal was due toa

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reduction-in-force. Plaintiff finally

confirmed the true reason for her

dismissal in 1974 after requesting and

examining her employment file under the

Privacy Act. The court ruled, however,

that certain clues plaintiff received

should have put on notice as to the true

cause of her dismissal:

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 [six years prior to her filing

of the complaint], that she had a

potential claim. This holds true

notwithstanding plaintiff’s

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 substcntiave her

allgged 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.

585 F.2d at 1054. In the instant case,

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appellant knew the real reason for and

the circumstances surrounding his

dismissal at the time of the loyalty-

security board hearings; he believed,

for example, that the FBI had, in its

eyes, lied as to his role of Government

informant. As a matter of law,

appellant at that time had sufficient

notice of his potential claim to

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Opinion Below 14a

commence the running of the statute of

limitations .?

Recognizing his dilemma, appellant

seeks to minimize the significance of

the hearings. He argues that he never

knew the FBI had in effect conducted a

campaign against him until he saw his

file in 1981. Until then,’ he merely

presumed that the loyalty-security

boards had chosen not to believe his

explanations. Appellant’s Privacy Act

request, discussed supra, tends directly

against this contention. Moreover, even

granting the inference that appellant

Suggests, his explanation is not

sufficient to warrant tolling of

limitations.

Braude is a fortiori to the present case

because in Braude a substantial argument could

be made that that employee never knew (until

years later) that she had been dismissed on

loyalty-security grounds. Appellant, in

contrast, knew at the time that he had been

removed on those very grounds, grounds he

deemed to be false.

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Opinion Below 15a

In Sandutch v. Muroski, 684 F.2d (3d

Cir. 1982) (per curiam), plaintiff

charged defendant-law enforcement

officals with conspiring to violate his

constitutional rights by obtaining false

testimony against him through duress.

The defendants pleaded that the statute

of limitations had run. To the

plaintiff’s response that he had only

recently discovered the details of the

conspiracy, the court answered:

We hold, however, that the record

establishes, as a matter of law, that

Sandutch had reason to know of the

alleged conspiracy to secure false

testimony as early as 1976, when he

knew of [the witness] recantation . .

- - Although at that time Sandutch

may not have known all the facts

necessary to establish that the

defendants conspired to deprive him

of his rights, his 1976 knowledge of

the falsity of |the witness’

Statement obtained under duress

should have led, by the exercise of

due diligence, to the awareness that

he had a cause of action. The

Statute began to run then.

Opinion Below 16a.

Id. at 254 (emphasis added).

Simitarly, appellant cannot escape the

fact that he strongly suspected in 1949-

195@ that the FBI had lied in its

reports to the Air Force. His wrongful

discharge claim under the Tucker Act

accrued at the time he became aware of

the difference between his position and

the FBI’s -- in 1949-195@.

Opinion Below 17a

Iil

Appellant’s primary argument on

appeal is that the Claims Court

misconstrued the nature of his case.

His cause of action, he says, is based,

not on the wrongful discharge per se,

but rather on the alleged impermissible

ex parte communications from the FBI to

the Air Force at the time of the

hearings. Appellant argues that, though

he was aware of the existence of an FBI

report to the Air Force at the time of

the loyalty-security board hearings, he

did not know that the FBI had (as he

puts it) determined to take an

adversarial or prosecutorial role in the

proceedings. He thus claims to fit

under the rule suspending limitations.

There are two reasons why this

position cannot be accepted. The first

is that appellant’s claim against the

Government under the Tucker Act cannot

Opinion Below \ 18a

be for a tort but must be because he was

allegedly or improperly removed from his

job. That claim of an illegal or

improper removal he already knew he had

by 1949-1950 when he knew the FBI’s

position was contrary to his and he

believed that that agency had fabricated

evidence. That was enough to file suit.

Because 28 U.S.C. Section 25901 commences

the Tucker Act’s six-year limitations

span when the "claim first accrues"

(emphasis added), it is irrelevant for

limitations purposes that Welcker may

not have learned until later that he had

further support for that same claim of

an illegal or improper removal, i.e.,

that the FBI had allegedly also engaged

in ex parte contracts.

The other reason for rejecting

appellant’s argument on alleged ex

parte communications is that, in any

event, the rule against such contracts

Opinion Below 19a

is inapplicable to this loyalty-security

case. The principal precedent for this

court’s sustaining a claim of

impermissible ex parte communications

during an administrative proceeding is

Camero v. United States, 345 F.2d 798

(Ct. Cl. 1965), and 375 F.2d 777, 780

(Ct. Cl. 1967). In that case, plaintiff

was removed from his position as a

civilian Army employee at a supply depot

in Philadelphia after the Government

charged him with falsely certifying

travel vouchers and receiving bribes

from contractors. A grievance committee

investigated the charges and moderated

the penalty. The depot commander, the

ultimate deciding official, solicited

comments from, among others, the Army

attorney who had prosecuted the case

before the grievance committee. He then

reinstated the harsher penalty. The

Court of Claims awarded plaintiff back

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Opinion Below 20a

pay on the ground that the commander

acted improperly in soliciting the

attorney’s comments.

The ground on which the court rested

its holding in Camero was not, as

plaintiff argues, that ex parte

communications between an adverse

Government agency and an administrative

tribunal are always per se improper.

Rather, the court ruled that by seeking

the advice of an adverse party the

decision maker had violated applicable

regulations. "[{PJlaintiff’s motion

raises serious questions as to whether

his dismissal was in compliance with the

regulations governing army grievance

proceedings. Clearly, the army was

bound to comply with its own

regulations." 345 F.2d at 805 and (in

the second decision): |

The problem is, however, that both

decisions were made, at least in

part, on the basis of the ex parte

communication of the opinion of

Opinion Below 2ia

Kostos, who certainly, albeit perhaps

not consciously, had as an adversary

more than a neutral stake in the

final outcome of plaintiff’s case.

This is enough to require us to

invalidate plaintiff’s removal as

being in violation of the regulations

governing the Army grievance

proceedings.

375 F.2d at 780 (1967) (emphasis added).