Petition for Writ of Certiorari — Huntzinger v. United States

Supreme Court brief1987

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BEQSEPH, SPANK)

In The ® CLERK

—s?

SUPREME COURT OF THE UNITED STATES

October Term, 1986

IRVIN JAMES HUNTZINGER, Sr.,

Petitioner, ~

Vv.

THE UNITED STATES,

Respondent.

Sn Appeal From The

UNITED STATES CLAIMS COURT

Petition For:

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Counsel for the Petitioner

IRVIN J. HUNTZINGER, Pro se

18 Tree Haven Lane

STAFFORD, VA 22554 - 9251

(703) 752-1060

Counsel for the Respondent

JOHN S. GROAT, Esquire

US DOJ, Civ.Div., Com. Lt. Br.

Classif. Unit 2d Fl - 710

TODD BUILDING

WASHINGTON, DC 20530

(202)

724-7239 -

a. Whether the Court(s) below did

err, in concluding that no issues of

material fact existed in connection with

whether Petitioner knew of or should have

known of the existence of a cause of

action on the present basis’ stated,

including bias, as-of his removal from

active duty in 1960, given his denials

and the documents first released to him

in June 1979?

4. Whether the Court(s) below did

err, in not ruling as a matter of law on

ive basis of documentary evidence and the

presumption of administrative regularity,

born of the then-extent regulations, that

Petitioner neither knew, nor should have

known, of -the accrual of a cause of

action on the bases now claimed, as of

1960, and therefore, that the statute of

limitations was tolled until the release

of documents to Petitioner in June 1979?

5. Whether the ABCMR did in err,

arbritrary and capriciously deny set-

aside "Fort Hood ERs" based on Staff

iii

Opinions of DESPER; and denial

reinstatement basis illegal, wrongful,

and fraudulent Separation based On the

Staff JAG Opinion “untimely filed"

Statute of limitations?

6. Whether the record contains such

Substantial ana uncontraverted evidence

of the breach of material Army

the exertion Of command influence, and

the ex Parte Presentation of Prejudicial

information to an Army Action, Active

Duty Annual Screening Board as a

Subterfuge to avoid a "for Cause"

ue That the Active Duty Board's

revoke(ation) of Petitioner's Indefinate

Service Agreement Was improper, and

before the board illegally basis of

fraudulent "brief"; Violation Order,

Secretary Army Instruction's Quidelines,

and Criteria that it is “null and void"

thereby mandatory Petitioner be

reinstated as prayed for?

8. That Department of the Army must

comply with Orders, Secretary Army;

Regulations, Federal Statute, and adhere

to its published policies, and protect

the citizen-soldier's constitutional

"procedural due process: rights; NOR,

respond to the Congress or Courts

fraudulently, knowingly.

TABLE OF CONTENTS

Question(s) Presented for Review a

Table of Authorities/citations vi

Opinion of the Court(s) below 1

Statement of Jurisdiction 5

Constitutional Provisions 6

Statement of the Case 7

VERBATIM ADDENDUM: Incorporated, applied-

case.- - Brief by: SAUL B. SHAPIRO - -

"Citizen Trust and Government Cover-up:

Refining the Doctrine of Fraudulent Con-

cealment", pertinent, case issue(s) 28

Reason for the Writ 29

Argument: :

Where Govt illegally, wrongfully

fraudulently, REVOKED Petitioner's” In-

definate Service Agreement" by "SHAM"--

“annual screening-AR135-173" vs “for,

cause" bias recommendation of "IG" pre-

judice-adverse report, “NOT QUALIFIED"

accord AR640-98; DA-TIGO orig. review

reported" bias-prejudice--final review

findings "contains-"NO PREJUDICIAL

INFORMATION."

Petitioner was denied "due process"

pursuant Government Rules, Regulations,

Stat.,UCMJ: and, 5th-14th Amendments,

Const. US, HOODWINK(ED) by concealment,

fraud, coverup-deception" SEQUESTERED

RECORD" classified--ABCMR acted

"“arbritary-capricious" basis DA staff

opinions v prima facia case evidence. 33

Conclusions 50

Appendix P-001 - 269

NOTES: 1)Rprntd by permission of the Yale

Law Journal Co and F B Rothman & Co ‘from

the Yale Law Journal Vol95 pgs 1477-1499.

Table of Authorities

Cases: Pages

Allen v. US,588 F.Supp 247, 341 (D Utah

TURE) ccd acccccessecvees 71478, 20, 22. 29

Allen Vv. Monger, 404 F. Supp.1081

oh SR) ae eee a 25

Baily & Glover, ss U.S. (21 Wall)

MASTER TO) cc cccsoeseseccccoscesessses Y1476

Barrett v. US, 689 F. 24 324(2a Cir 1982)

COTt.GENLEG. ..cceccceccesecsssserce® Y1478

327(2d Cir. 1982. ..cccccescccsscers ~¥1482

Bazelski v_ Paine Webber Jackson & Curtis,

Inc, 514FSupp535,940(N.D.I11 1981)...¥1481

Bell v. Milwaukee, 746 F 2d 1205, 1229-31

(7th Cir 1984)...-e-+eereereseccs <aseeen 21

Bell v. City of Milwaukee, 746 F 2d 1205,

1231 (7th Cir 1984)...-eeeeeseresess Y1496

Bennett v. Hilbernia Bank, 47 Cal 2d 540

550, 205, P2d.20, 33 (1957) 2.225204 - ¥1480

Biddle v.US, 1968 Ct Cl 87, 186

(1968-69). -eeeees 15, 20, 21, P-039, 043

Biven v. Six unknown Agents of Fed Bureau

Narcotics,403 US 388, 391-95(1971..¥1487

Bluth v Laird,435 F.2d1065 (4thCir.1970) 27

Boen v.US, 2, 229CtC1144,148,666,F 2nd

326,539,certdenied456 US 991(1981) *P-031

supra229CtClat148 , 666, F2d539. ..P-032,042

Braude v. US, 218 Ct Ct 270, 273-74, 585

lt eta

F 2d 1049,.1051-52(1978) ...--- *p-033,042

BrennanvHobson, 105 S. ct 1843

TEGES) cc ccccsccccsccccsosccss Y1476,Y¥1484

Brown v. Glines, 444 US 348(1980)...23,24

Bruno v.US, 214 Ct Cl 383, 386, 556, F2d

1104, 1206(1977) «ccccccseseseses® *p-032

Brown v. US, 1971, 195 Ct.Cl 103....---

Caddington v.US., 5 1959 178 F Supp 604,

SST CE CL Odes vccesegestaveresessce® ‘ gcae

(Also see 1952 Op Atty Gen Mar 20, 10

U.S.C. Sec 1552...2ceeeeeees ‘ 20

Campbell v. Upjohn Co. ,498 F Supp .722,

727-28 W.D. Mich 1980 Af'd 676 F 2d 1122

(6th Cir. 1982) ...cccececsesesccccs Y1479

Canton Luthern Church v. Sovik, Mathre,

Sathrum & Quanback, 507 F Supp 873, 878

1D, SD. LISELI coccescccesesccssesecs® y1480

Caper v. Eicks, 457-55 Apr 8.59, «--see:%

Cattellv.Barrett, 462 U.S.1131(1983) ¥1477

vii

Chappell v. Wallace, 462 U.S.297,103 S.Ct

Ey. SE ED as a a a n't a's bo i'n 6 AS be 23

Colson v. Bradley, 477 F.2d 639 (8th Cir.

hee 2 RPP Re eee ae ee 24,25

Costal Petroleium Co. v. US, 228 Cl Ct,

864, 366 (1981), cert denied 456 US 915

TOE 6 G4 SS he is ck bac a a ees gl 12

Davis v. US, 642 F 2d328, 332(9 Cir 1981)

cert. denied 455 us9i9 (1982)...... Y1479

Dayco Corp v Firestone Tire & Rubber a

366 F.Supp 546, 549 (N.D. Ohio 1974)

aff'd 523 F.2d 389 (6th Cir 1975)..¥1479

cond Oh ag. eg LEO ee ee eee 22

Eurell v. US, 216 ClCt 273, 276 F 2d 1146

SS nk JM EREREETOUIEU OCCT OTe Cee *P-032

supra, 215C1Ctat276, 566F2dat1148...*P-031

Fitzgerald v. Seamans, 553 F2d 220, 228

1. Bu ahi ces PEPE cbeetéeecas Y1479

Friedmanv.US, 159 Cl1Ct 1, 13, 130 F 2d.

381. 389-90 (1962) certdeniedsubnom. .*P-037

Frontierov.Richardson, 411,US.677(973)..23

Furlong v. US, 153 Cl Ct 557-563 (1961),

supra Note 1, 153, Cl Ct @ 380 (See

Armed Service Key 13.5(5), 23.4(1)...:23

Gallaway v. Stetson, 448 Sup 575...*P-039

Gee v. CBS, Inc., 471 F. Supp 600, 630

See GOEL 545 bos kde 64 bh be ke cae Y1480

Gerber v. U.S.,2C1Ct311,315(1983) ..*P-030

og es a ee tb are eee eee *P-037

Geyerv.Marsh,782 F.2d 1351(5thCir1986) .24

Gibson v. US, 781 F2d 1334-45

Bo Bee egy SP ee ce ee re Y1482

Gonzalesv.DoA,718F.2d 926(9Cir1983)...27

Grieg v. US, 640 F2d 1261, (Ct Cl 1981,

cert denied, 455 US 907(1982)......... 25

Hammond v. US, 388 F.Supp 928, 934,

ame ES die 0 as San od ee oe eed ck eck

Harmon v. Brucher, 355 U.S. 579 (1958) .23

Hauptmanv.Wilentz, 570 F.Supp. 1003, 1019

G8 Me ge: AOR ea Pate Y1483

viii

Hernandex, Jimenex v. Colero Toledo, 604,

F 2a 99, 101-02 (ist Cir 1979).... Y¥1483

Hobson v. Wilson, 737 F.2d 1, 33 n.102

(D.C. Cir 1984) cert. denied, sub nom

Brennanv.Hobson,105D.Ct.1843(1985) ..Y¥1476

Beammem. FST © 2G BC 39—S6. wcccvcvses Y1478

Hobson v. Wilson, 737 F2d 1, 36-37(DC Cir

SUUM GOTC. GORRGGs ccs cenvesicsesces Y1478

Hohriv.US, 782 F.2d 227, 248(DC Cir 1986)

> we oes |) Avro eres Y1478

Holmbergv.Armbrecht, 327 US.392(1946)...29

Hoppock v. US, 1966, 176 Ct Cl SEE wirem-s 3

Huntzinger v. US, 9 Cl Ct (1985) ..8,P-002

Huppv.Gray, 500F.2d993(7thCir1974)...¥1480

Ingrahamv.Wright, 430US651,673(1977) .Y1495

Japanese War Notes Claimants Ass'n of

Philippines, Inc. v. US, 178 CtCl 630,

632, 373 F.2d 356,358, cert.denied, 389,

U.S. 971(1967)Reh'g denied,390 U.S.

SPS (iSGS) «ade cscssvnvsees <eeweke *p-031

supra,178CtClat634,373F.2dat358-59*P-033

J.Locle,SecondTreatise of Gov't Sec 156,

at 88 (T.Perdon ed.1979 (list. ed.

London 1690)... cccccccesvccs saeken Yi491

Johnson v. RailwayExpressAgency, Inc.421

DS CONT Oe ceccsceevtaneaes eens (sean eeeed

Kirby v. US, 201 Ct Ct 527, 531 (1973),

cert.denied, 417 US919(1974), supra, 201

CtCl at 532,supra,201CtCl at531...*P-030

Lindahl v. Off of Pers Mgmt, US, 105 S.Ct

BEE CASES! 6 ccccccese seaeeeenes ppiascame

Lipp v. U.S., 373 U.S. 932 (1963) ..*P-037

Liuzzo v. US, 485 F.Supp 1274, 1284

(E.D. Mich 1980) ......cceceececoes Y1485

Long v. Abbott Mortgage Co., 459 F Supp

108, 118 n (D Conn 1978) .....+.----- Y1477

459 F Supp108,117n5(D.Conn1978)....¥1479

MacKay v. Hoffman, 403 F. Supp 467

«Bb es rrr res Preyer rr re Tere er 25

Madsen v. Kinsella, 343 U.S. 341, 345-7,

Bae CLOGS 6eesoeeve eee ee eo ree ee

Maier v. Orr.,754 F.2d 973, 984-5

(POG Cir 1988). cccccccsccecsesesesess 27

Mathisv.U.S.,1, 183 CtCl 145, 391 F2d 938

(1968) ,aff'd on reh'g 190 CtCl 925, 421,

Se TE CASTS) cc cceeesetwteseecers *p-031

Mindes v. Seaman, 453 F2d 197

CRED CAP ce aS ad acc eseccsseseessess 25,26,27

Monnighv.US, 1 C1Ct at 429...*P-033,P-042

Moore v. Schlesinger, 384 F.Supp.163

PB | Se Ieper

Nitolv.US, 7 Cl ct.405, 414(1985)...¥1478

Ocean $.S. Co. v. U.S.,218 Ct: Cl 87, 586,

Pe BS el rs | ee i aaa ek a *P-033

Parker v. Levy, 217 U.S. Peete) of |) 23

Peck v US,470 F Supp 1003, 1019

I Y1479-82

Penagaricano v. Llenza,747F.2d 55(1stCir.

aa, | SMR Ger eee enone 27

(9th Cir on pa ele Ee or mes 27

Ramsey v. Culpeper,738 F 2a 109 ~ aeee.

S Bim Geeew Gee DOUG) oc cccc dehicecr Y1479

Richards v. Mileski, 662 F.2d 65,68,73

As I i oe Y1482

Bigeee @. Be. Ce Cl 1966... «ccs us *P-039

Schattenv.US, 419 F2d 187(6thCiri1969) ..25

Scrogging Yeats, a8¢ Ct Cl at 534, 397,

we. © & 3p pipe e: 28

Sec. of Navy v. Huff, 444 US 453 (1980)

ee ST Cee an hei ied sw ékeeee%n cen. 23

Sevier v Turner, 742 F.2d 262

S08 SS errr eee Y1482

Smith v. Nixon, 606 F2da 1183, 1191 n 44

(D.C. Cir 1979), cert. denied, 453 U.S.

8 Pr reer ee Per aries Y1485

Soriano v. US, 532 US 270, 273-74

2) Brrr ers ere *P-030

Spinelli, Kehiayan-Berkman,S.A. v. Imas

Gruner, A.I.A. & Assoc, 602 F.Supp 372,

‘ S & & . | Perea Terre Tee Y1480

State Farm Mut, Auto Ins.Co. v Ling, 348

er Ee WY BB i gy reel Y1481

Bee we. Ue, ABra Bee, Ce CL BO4. . sc cee

Tonsmeire v. Tonsmeire, 285 Ala 454, 456,

233 So. 2d 465, 467(Ala 1970)...... Y1481

Turner _v. Calloway, 371 F. Supp.188,192-3

Laurel Ms dd bk wo 6 de oe ee he kceeun 24,25

US ex.rel. Berry v. Com'dg Gen., 411 F.2d

Sam COE CONk CUE) coca bk sku hs teaneene 25

U.S. ex.rel. Gaston v. Cassidy, 296 F.

SUPP FES Ce cDc Me Ss BOOP) cccccccccercen

U.S. v. Margiotta, 688 F 2d 108, 142,

(2dCir1982) cert denied, 461 US 913

Cee & & bad 40 6 O08 6 06.0: 606 0 bee eer es Y1481

VanderMolen v. Stetson, 571 F. 2d 617

ee, ee ee ee ke the eee erwenees 28

Van Drasek v. Lehman,et.al.,762 F2d 1065,

te ee: Ce Bh» BOOBEs css oneeeceseaes

Vest v. Bossard, 700 F.2d 600, 602-04

SE Ce a en a og 4 h.0.0 6 06608 5a Y1482,86

Wallace v Chappell, 661 F. 2d 729

a Sr PUD nnn 6 oe 6 6 ee 6000606804000 27

Webb v. US, Ct C1223, 745, #505-78.......

Weiss v. US, US Cl Ct 205-65

i Mr. CPD « ececoceedeeseeeesesese 21

WelckervUS,752F2d1577,1383(FedCir) ..Y¥1483

Wilcox v. US, 3C1Ct83, 84(1983), aff'd,

769 F2d 743(Fed Cir 1985)......... *P-031

supra 3 Cl Ct at 85... ccccccccccece *P-033

83.84(1983) Aff'd 769 F 2d 743

Pe Gee BOO E does cdeceseseeseqeeees *P-042

Williams v. Wilson, 762 F2d 357

CRG GAN BOOMS cece tcestieceoasesesetses 27

Wood v. Carpenter,101 US 135(1879)..Y1476

STATUTES

2 uSC(60 Stat.831; 190g Section 131 of

theLegis.Reorgzan Act of 1946... 4,18,19

§ u.S.C.: Sec 701(b) (1) (2) ccc ccc cece.

552 (b) (6) & (7) , Exempt from

mandatory release IG Records..........-.

552(b) (5), (6), & (7), Exempt FOIA &

Privacy Act "IG" records.......seeeeees

BOG, BOOe CAOGEl cc ecccccccsececeseseces

10 U.S.C. See 632(1980) .ccccccccsceqecses

10 U CG. GOO Babcecccccccce 4,19,21,23,26

10 U ©. BOS 2OSA.cccccccccccescsecesse 29

10 U.8.€C. SOC BIOS. ccccccceceececccacecs

10 U C. Sec 938, UJMJ, Art 138&139...23

28 U C. Sec 45, 1254(a) (2)....... 2,4,19

MISCELLANEOUS

Federal Tort Claims Act(FTCA), 28 USC Sec

1346(b) 2672-80 (2982). ccccceccses Y1482

U.S.C.28Sec 2501(1982) Stat. of Limit...4

TuckerAct.28 USC2 1346(a) (2) (1982)..Y1482

White Charger Act of 125-2 1960,

<n Pi. Cie 6 = 6666 6a be ee 6 86.0668) O60 8 4

U.S. Constitution Amendments. I, IV, V,

Wan, VEERs OB BEVscecesses 4,18,21,23,27,29

ARMY REGULATION(S):

a ye Se 4,20,29, *P-006,009

Be Ere Ore rar 20

Oe 6 50. 6.4-0a ek 4,14,20,21, *P-006-9

MD MT is 6% 06 6s bd ta en 4,15,20,21, *P-005

GS 5 Saab 4. Gxae eae Ge 4,15,20,21

OP CCL Ns6 che Wkbd bade kaa en 4,11

ee nes 466 hw GK Ren bk wad 4X bone 4

AR 640-98 CAS 6 66 68 4,11,20,21,22,29, *P-005

DA TECHNICIAL BULLETIN(TB IG)..21, *P-009

Oe WOEt SOON beh 0b ded hed eée ads he kk cose u

Footnotes:

“ay Yale Law Journal

"— « Claims Court

xii

Other Authorities

“ert ie FOR COURT MARTIAL of 1951, Par 151

Art(s) 13, 31, 138 and 139......s.. 21,29

U.C.M.J., Par 151c(3), Art 138,Art 139...

US Appeals Court for the Fed Cir. Rules:

me. i. eee re re serra ye eee ae *Pp-003

U.S. Claims Court Rules: 12(b) (1), (4);

26(b), (b) (1); 36; 55 (a); 56(b).,83.2(d);

Sd. Ls O9.2 UB) 16) 0 crc Tsiciccseces *Pp-045

U.S. Supreme Court Rule 17.........---. 4,19

Board of Regents v. Tomanio, 446 US 478

oh | ae erage ee we ee eee Y1482

Columbia L. Rev 387 (Mar 1984)........-- 27

Dawson, Undiscovered Fraud & Statutes of

Limitations, 31 MichL.Rev 875(1933)..¥1477

Note 1 at 879n. 11 ..cccccccrccccces y1481

(March 1964)... cccccccvccescescesecs

Marcus, Fraudulent Concealment in Fed Ct

Toward a more desparate Standard, 31 Geo

ee cae} OS 8) ree ere ree as 2 yi

A more recent treatment, see Marcus,

Fraudulent concealment in Fed Ct..Y1478

See Marcus supranote 1, at 867-69..Y1479

878-32, 864-65, 861-64.........---- Y1479

Marcus at834-835n41 831-33,839-41. .Y1482

Stat. of Limit, 63 Harv L Rev 1177,

ees ae |) es Pere es eee Y1480

See 15A C.J.S. Confid. (1955) 355....¥1481

The Yale Law Journal....... Terr rere Tee

"Citizen Trust & Government Cover-up;

Refining the Doctrine of Fraudulent

Concealment.” Vol 95 Jun 1986 Iss 7

1 Restatement (2nd) of Trusts Sec 2) (b) |

bh S) j PP eePTPTTUCC TEC Ete Y1480

xiii

Table of Authorities

(Petitioner's Brief before US Court of

Appeals for Federal Circuit)

4 April 1986

Cases: Pages

*Adickesv.S.H. Kress ,398U.8S.144(1970)..40

*Bigele 9. U.S,.. 16C¢.C1.3$? ee eee Oe,

Caddington v. United States,178 F. Supp.

vive te, TR “eS. |e Rae 49

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

i SE. eae eee 47

*Cruz-Casado v. US, 553 F.2d 672

i SR Re a PPP Re rare 42

Doggett v. United States, 207 Ct.Cl. 478

ere Chee eee ce iba vh aha es ce wd 49

*Duhon v. United States, 461 F.2d 1278

on Si 5 Si . o> + Ope gee ee ee 49

Eichs v. United States, 172 F. Supp. 445

[oes We BUT acess codacnce a Caceeeu 49

*Fitgerald v. Hampton, 467 F.2d 755

(ee Si. Peer RSS are araen 47

vacated on other grounds sub nom

_ Harlow v. Fitgerald,45 7 us.80(1 82)..27

Forest v. Resor, 379 F.2d 861

io 2 Te |) | ia a aera a oa 33

Gouchinder v. Marsh, 754 F.2d aaat, aian

Li Oo FR Ore ae 0

wo Me. eer ee 46

Hary v. United States, 618 F.2d 704

i ho? Se. eer eor eer 47

Hawkins v. U.S., 183 ct Cl (1968)..... 49

*Henderson v. U.S., 175 Ct Cl 690 (1966)

cert denied, 386 US 1016 (1967)...43,46

‘Istivan v. United States, 689 F.2d 1034

(COu Mek Bes css <u ceiee ke eee see 6 ee 42

Xiv

*Lynn v. Maryland National-Capital Park

and Planning Commission, 514 F.2d 829

icGa Gs. BETO Cee cerccesivesaesseses 30

Pure Gold, Inc. v. Syntex. 7S .2.) 2s.

739 ¥.4a6 626 (FeG. Cif. 1984). csccce 40

Reily v. United States, 608 F.2d 441

Pens Gis EER a6 pw esow east eeccceoense 47

Roberts v. Vance, 343 F.2d 236

er. ee BE? 16 och 6 ae es eee se Bae ees 42

*Robinson v. Resor, 469 F.2d 944

Ga CE BET bee ccesBeereveeescenses 36

Ryder v. United States, "585 F.2d 482

(4 Oe ~ so. | ree ee 47

*Sanders v. United d States, 594 F.2d 804

[ons Ghe Mr écs sass erry rrr ere y 42,46

Selman v. United States, 498 F.2d 1354,

i. ft . he ee | errr ee 49

*Skinner v. United States, 594 F.2d 824

|. 3 i Synalar . - 46

Van Bourg v. Nitze, 388 F. 24 557

i. Bee BPR ode eeeeeneeeesanesgenes 47

*VanderMolen v. Stetson, 571 F.2d 617

et Po) err 35,42,43,47,49

United States v. Diebold, Inc., 369

ail, BA. MED 6.6.6 60.0-0646006 5046660066 40

Welker v.US,752F.2d1577 (Fed Cir1985)..27

Yee v. United States, 512 F.2d 1383

fhe Gs SOT 6 cdnebes 66s 404 SRR ORES 46

Other Authorities

Moore's Federal Practice, > Fae 41

Moore's Federal Practice, $56.15[(5])....40

Moore's FederalPractice, ce,$56.15[1.-00]..40

* Cases chiefly relied upon

CITATIONS (Applicable)

(cited before the U.S. Claims Court)

BARD v. SEMMONS, 507 2d 765, 768, 770

(LOth Cir 1974)... cccccccccecccccccccs

BEALE v. UNITED STATES, 413 F.2d 556,

(188 Ct Cl 10 USCA 5706).......2--ee-

BECKMAN v. U.S., US Ct Cl 379-61.....--

Page

(if used) No

BETTS v. UNITED STATES, 172 F Supp 450,

ee 5 as so oc ecco es

BIDDLE v. UNITED STATES, Ct Cl 365-65,

EEE EST eee 6 & 8

BONEN v. UNITED STATES, 229 Ct. Cl 144,

wee a em WOE, B39, ....6660.0000

BORUSKI v. U. S., 140 Ct Cl 155........

BRAUDE v. UNITED STATES, 218 Ct Cl 270,

273-274, 585 F.2d 1049,1051-52(1978)..

BREWSTER v. SEC. ARMY, 489 F Supp 85,

I ae

BRUNDAGE v. UNITED STATES, 504 F.2d 1382

(Ct Cl 1974) 205 Ct Cl 502, 204 F.2a

EE Se eee

CAB v. DELTA AIR LINES, INC., 367,

CARTER v. UNITED STATES, No 127-66

COOPER v. UNITED STATES, 178 Ct Cl

ee ee ee oak 4 0 -< 0s 0 & 8s awe o @ 0

CRAFT v. UNITED STATES, No 96-74 decided

mee Ba, Bere, wee £1260 1057..........

DAYLEY v. UNITED STATES, 169 Ct. Cl. 305

308-09(1965)2 Davis, supra, Note 10..

DERRING, Lewis v U.S., 213 CtCl 710....

DILLY v. ALEXANDRIA, 603 F.2d 914 195

US App DC332 Opinion clarified 627 F.2d

407 200 US App DC 354............ ees

DOWLERv.SCHLESINGER,284F Supp 39(1979)..9

DOYLE v. U. S., 599 F.2d 984

EE EE

EGAN v. UNITED STATES, Ct Cl 158 F Supp

ae eee

EICKS v. UNITED STATES, F Supp 445, 145

mee a I OD gd cc ccc cece.

FOSTER v. UNITED STATES, 3 ct cl 440,

EE OS

FRIEDMAN v. UNITED STATES, 141 Ct Cl

239 (1958) Ct Cl 1, 30-31(1962)

EES EL

FURLUNG v. U. S., Ct Cl 557-563(1961)

Supra Notel1,153 Ct.Cl 380(see ARMED

SVCS KEY 13.5(5),23.4(1)"A man might

be considered sufficiently fit to

remain on AD-but, qualified

xvi

if used _No _

GALLAWAY v. STETSON, 448 F Supp 575..... 6

GERSTEN v. UNITED STATES, 364 F.2d 850,

£70 CE Ch Gas APSO 66 bc cee ee sk ecense

HAMLIN v. UNITED STATES, 183 Ct Cl 137

2 Fe es Pre ere eee ree 8

RANKIN v. U. 83., Ct Cl pe 3a, 3B..ceeee

HARMON v. BRUCKER,355 US579(1985)pg39..

HARY v. UNITED STATES, 618 2d 704......

HERTZOG v. UNITED STATES, 167 Ct Cl 377,

;) i Re? Se eee eS ee See Se ee

HODGES v. GALLAWAY,499 2d 417,420 5th

Cae. CIO E! 6 0 cae seek O80 he 8 06600 00 oso

KAISER v. SEC NAVY & BCMR 7525 Fed

op | 1226 Nov 17 1981 Civ A No

-912 US Distr Crt D Col.

ioe nT, 1981 Const. Amend 5, 11; 10

USCA 1552, 28 USCA 1331, 1361, BOG4.cce®

KIRBY v U.S., supra 201 CtCl at > 3

MERCERAU v. U.S., 155 Ct Cl 157(1961).

MERRITT v. U. S., No 371-61 (1963)

Pg 261 No 371-61... cc ccccccccccccccecs

MONNIGH v U. S., supra 1 Ct Cl 429...... 3

MULVANEY v. STFTSON, 470 F Supp 725, 730

B.D. TAL) TOOT wan ccd eas dcasscacess

NORMAN v. UNITED STATES, 183 Ct Cl 41,

392 F.2d 255, 89 S Ct 622, 393,

US 1018 21 LED 2d 562........ceeeeeoes

OCEAN S.S. Co. v. U.S. 218 Ct Cl

87, 586 F.2d 774 (1978) .....2-eseeees

ORLOFFVWILLOUGHBY, 345 uUS83, 93-94(1983).

PROPER v. U.S., 154 Supp 317, 139

ct €s Baa (1957) Pe CCE TT rT? Tee Ee

REALE v. UNITED STATES, 413 F.2d 556, 188

a eS) errr err TTC Cary eS ae

RICKER v. UNITED STATES, 184 Ct Cl 402

396 9. 2G BSG ccc ccc eterasaeesasess

RUCKER v SEC ARMY, 702 F.2d 966 (1983).

SANDER v. U.. 219 Ct Cl 285, 301, 594

10 USCA 1552 594 F.2d 804 37 USCA 204

10 USCA 1554 id... ccc ccc ccecccccccccess 7

SIDNEY v. U.S., 594 F2 824 (1974);

219 Ct Cl 321 (1979) .. cc cccccecccccees 8

STRAHLE v. UNITED STATES, Bk 221 Pg 158

US CtC1(20/10 AKA “White Charger Paper)

TANKAV v. U.S.~, 710 Ct cl 712... cceeee

VON HOFFBURG v. ALEXANDRIA, 615,

F.2d 633 641 (5 Cir 1980) ......--e0-

xvii

Page

(If Used) No

WEBB v. UNITED STATES, Ct Cl Bk 223

Pg 745 & 505-578 Adverse ER Violation

AR 623-105 Bds decision arbitrary,

Capricious, contrary to law..........

WEISS v U.S., 408 2d 416 187 ct _. eae 6

WELLCKER v. U.S., 752 F.2d 1577

a Ce ge fl

a a ES . Ay uae eae

YEE v. U.S., 206 Ct Cl No 449-73

gg ny SO. ae See: | eae

WHITE CHARGER ACT of 7/12/60 STAT 386,395

WILLCOX v. U.S., 3 Ct Cl 83, 8&4 (1983)

Aff'd 769 F.2d 743 (Fed Cir BOGS) we

STATUTES

10 U.S,C.A. Sec 1552,, 5706.........cece. 7

28 U.S.C.A. Sec 1331, 1351, 1491, 2401..7

MISCELLANEOUS

Const. Amend., 5, 6, 7, 11 & 14........

ARMY REGULATIONS (See App "I").........

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

IRVIN JAMES HUNTZINGER, SR.,

Petitioner,

Vv.

THE UNITED STATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

OPINION OF THE COURT BELOW

The United States Court of Appeals for

the Federal Circuit affirmed the judge-

ment of the United States Claims Court

MEMO: = All Appendix(s) references:

(App ) are contained in Plaintiff's

"Brief" Appendix dated 4 April 1986.

Attached Appendix (APX P-). 2. All

references to: Incl TAB" " are those

documents submitted; by leave of the

Judge (Yock), U.S. Cl Ct, and returned by

Deputy Clk, Cl Ct; and submitted to this

Supreme Court by letter of 26 March ‘86.

without written opinion but by adoption

of the United States Claims Court opinion

FILED OCT 23 1985 (Appeal No 86-798)

UNPUBLISHED (APX P-003) reproduced (APX P-

003). Petitioner made motion “Request

Rehearing in Banc" FILED DEC 2, 1986 RULE

26 and 27 (APX P-005), denied by ORDER 8

Jan 1987 (APX P-001). A motion for

publication entered with justification--

effect upon military personnel in the

need to file suit on separation for

potential protection discovery-deposition

rights for wrongs the government might

have commited while ia military service

in violation of their published direc-

tives (APX P-028), denied (APX P-001).

The United States Claims Court (Case

No 317-85 C) granted respondent “summary

judgement” basis not timely filed six

year statute of limitations (APX P-038),

finding no error affirm(ed) by the United

States Court of Appeals for the Federal

Circuit. Case was dismissed. RUSCC 32(b).

NOTED: "The material facts are not in

dispute." Judgement (APX P-064). Motion

for "Reconsideration" (APX P-065), U.S.

Claims Court denied (APX P-074).

Plaintiff's response to Defendant's

Motion . for "summary judgement" is

attached, pertinent, as substantially

supportive of this case (APX P-075).

(Opinion of Administrative Agency below-B

CMR)

The Respondent's Department Army

(DA), Board for Correction (BCMR) consid-

ered Petitioner's case per MEMORANDUM OF

CONSIDERATION dated 27 FEB 1985, attached

(APX P-0129) with supporting Staff JAG

opinion(s) dated: Cmt 2, 3 Nov 83 (APX P-

146); Cmt 4, 3 Feb 1984 (APX P-148); Cmt

2, 3 Aug 1984 (APX P-149); and attached

are Petitioner's Counsel Briefs dated:

Sep 9, 1983 (APX P-157); Jan 13, 1984

(APX P-172); Jan 27, 1984 (APX P-177);

Mar 30, 1984 (APX P-184); Nov 1, 1984

(APX P-191); and Jan 2, 1985 (APX P-205);

with letter of transmittal BCMR Memo HQ

DA-TAGO dated Mar 20, 1985 (APX Pe2]C),

acknowledged per letter dated 27 March

1985 containing appeal based on record of

error in stated facts, including

exception to alleged 2 Apr 1960 action by

the DA-Active Duty Board (ADB) (APX P-

212) consideration of Petitioner's letter

"Request for Retention on Active Duty”

dated 19 Mar 1960 (App P-92) disputed as

not presented to ADB per brief of Jan 27,

1984 (APX P-177), as stipulated in CMT 5

OPMG, Chief Pers..regarding letter of 19

Mar 1960 "is being held in abeyance

until”..(APX P-241) dated 22 Apr 1960,

therefore could not be before the ADB; as

further confirmed, no documents confirm-

ing such action were found by BCMR per

letter dated 22 Jul 1985 (APX P-242) and

DA-OTAG, USARCP&AC dtd 3 Jun 1985 (APX P-

243)--another fraudulent act by DA-BCMR

arbitrary and capricious denial of

Petitioner's application. Examiner's

report further conflicts with the

administrative record of BCMR previous

Examiner's Reports on set aside ER's Ft

Hood/Promotion actions and, DA RCPC “MEMO

FOR RECORD 10 Jun 1969 (APX P-255) refer

response -to Senator Montoya; and, Letter

to Senator Yarborough dated 26 Feb 1970

(APX P-257).

STATEMENT OF JURISDICTION

The United States Court of Appeals

for the Federal Circuit (Appeal No. 86-

798) FILED OCT 20, 1986, AFFIRMED: The

United States Claims Court, Opinion,

(Case No. 317-85 C), FILED OCT 23, 1985

granting “summary judgement" - six year

statute of limitation of Respondent.

Motion filed requesting “Rehearing in

Banc” Rule 36 and 37, DENIED per ORDER

JAN 8, 1987; Notice of Appeal FILED JAN

8, 1986.

JURISDICTION of Writ of Certiorari

is INVOKED under RULE 17 .1. (a), (c),

and .2.; and VIOLATION OF: Government

Rules, Army Regulation(s): AR 15-6, 20-1,

135-173, 135-215, 600-31, 623-105, 640-

98, and United States Code of Military

Justice (USCMJ); and, Federal Statutes: 2

3.8.c. 60 Stat 831 Legislative

Reorganization Act of 1946; The White

Charger Act of 12 JUL 1960 Stat 386, 395;

10 U.S.C. Sec 1552; and, 28 U.S.C. Sec(s)

1254, 1346(b), 1491, 1552, 2671, 2675 and

5706; and Federal Torts Claims Act; --

VIOLATIONS of "due process" right(s) guar-

anteed by the United States Constitution

"Fifth and Fourteenth Amendments--with

entitlement(s) protection: First, Fourth,

Seventh, and Eighth thereof.

28 7.2.¢. Sec 2403 (a) may be

applicable; copy served on the Solicitor

General, DOJ, Wash., DC 20530.

CONSTITUTIONAL PROVISION

Petitioner was denied his

"Procedural Due Process” pursuant to his

guaranteed rights under the Constitution

of the United States of America, First,

Fourth, Fifth, Seventh, Eighth and

Fourteenth Amendments.) (APX P-218).

STATEMENT OF THE CASE

"Brief--Introduction”

(background History)

Petitioner Irvin James Huntzinger,

Born 6 June 1932, Hegins Pennsylvania,

enlisted in the United States Army at the

age of 147 at recommendation of his

Commander, upon discovery of his true age

at 15 (Discovery made thru his assignment

as undercover (narcotics) assignment with

Army CID) by background investigation for

attendance at Army CID School. Without

objection, after third enlistment

attempt, Petitioner was granted waiver to

remain in service, with proviso that he

continued with his education and excel-

lent/outstanding duty record, with re-

assignment to Okinawa. Separated age 17

2 Petitioner enlisted due to "high

patriot" duty (Brother had enl 7 mons

prev and was on leave) procured his draft

card (without his permission) and

presented it, upon req for ID, to

Recruiting NCO. This should clarify

"SInnuendo(s)" by the Respondent, IG and

BCMR, JAG opinion et.al.,--

upon return to US, expiration of service

enlistment to attend Pennsylvania

Institute of Criminology where he was

enrolled as a correspondence student, for

resident's attendance (Order change

status attached APX P-222). Waiver was

granted by HQs Department of the Army

(Air Corps), the Adjutant General.

In June 1950, outbreak of Korean War

Petitioner enlisted in Regular Army and

volunteered for assignment in Korea.

Assigned 3d Inf.--returned CONUS June 51

with pending application for CIC duty

FECOM; upon notification of selection vol-

unteered return to Korea for duty with

CIC as Special Agent, after orientation

course, assigned duty resident agent

attached Marines in defense of river

crossing, demarcation of peace talks. Sub-

sequently rotated to HQs xX Corps CIC Det--

soon after assignment the Detachment lost

all but 1 officer and he was assigned

Detachment Adjutant & Supply Officer (All

agents were in Officer status).

Petitioner was commissioned on basis

of demonstrated leadership as a (SFC)

Staff Sergeant Major with over six months

combat service (Korea). As a Sgt/SFC (Adm

NCO) he was assigned to position(s) of

Sergeant Major or Acting ist Sgt from

1953 thru 1957 (HQs US Army Europe Avn

Comd Depot; HQs USAREUR PMD (GS)

Training, Organization & Plans; HQs DA

(GS), Army Avn,(MDW) ordered to active

duty AUS (USAR) and assigned Ft. Sill, OK

to attend BOC, due to math deficiency,

with strong “leadership recommenda-

tions", and recommended further school-

ing, with understanding awarded con-

structive credit for BOC; relieved from

School and assigned to Staff and Faculty

for purpose of organizing a MP Security

Detachment, with branch’ transfer to

original branch of commissioning MPC, as

exception to "DA-CMD policy” (APX p-225)>

upon organization of MP Detachment became

the first Commander (replaced by LTC,

MPC) in support of the Army Artillery &

Guided Missile Center, security of TOP

3 Tab "V" returned by Cl. Ct.

SECRET equipment/classes; selected by PMG

for classified assignment JTF 7.2 (Due

overseas assignment). Assigned 720 MP Bn,

Ft Hood duty with lst Prov MP Company--

being organized for movement to Marshal

Island via Sandia Base for security,

screening, and classified indoctrination--

TDY from 720th MP Bn, Ft Hood. Prior to

this assignment he was extremely active,

apparent from the record, in local and

National Reserve Officer Association

“political” activities, elected National

Jr Vice President--served on various

national committee(s) to include a Panel

(APX P-228) on the “Number One problem of

the Army today", a responsible

challenging problem which he took

seriously, apparently too much so. Upon

arrival at Ft Hood, it immediately became

a conflict of issue and. the’ record

speaks...there after, personality clash

with Commander, etc..he withdrew from ROA

on receipt of letter of Counsel from

Provost Marshal General, MG Hayden UL.

Boatner (APX p-229) 4 further details are

in Defendant's Administrative Appendix

"201-Huntzinger".

Served as Military Aide to Governmor

of New Mexico Jun 1962-Jan 1965.

Appointed Colonel, ADC 10 Apr 1964.

September 8, 1968 ordered to Active

Duty (AD) - position "LTC" Sr Advisor,

Logistical Support Group Commander (Col).

AUS, victim "Hong Kong Flu" -- PEB

"Recommended continued AD" disapproved

DESPER-DA, retired disability October 1,

1970.

--The Case-Facts--

The United States Court of Appeals

for the Federal Circuit upheld a United

States Claims Court decision which held

that “Appellant failed to show deception

or fraudulent concealment of the true

facts that included his justifiable

4 Tab "B-G" returned by Cl. Ct.

reliance and delay in bringing’ the

action." Based on BCMR decision.

The Appeals Court opinion, DECIDED:

October 20, 1986. “Appellant Huntzinger

appeals the “summary judgement" of the

United States Claims Court dismissing his

complaint. Huntzinger v. United States, 9

Cl ct 90 (1985). Appellant's complaint

FILED MAY 28, 1985, challenged his

removal. from active service in the US

Army in 1960 and sought reinstatement

along with back pay and other benefits.

The Claims Court held that Appellant's

Claims were barred by the statute of

limitations. Finding no error in that

decision, “we affirm on the basis of the

Claims Court's opinion.” Without ruling

merits vs statute limitation.

Appellant filed "MOTION LEAVE OF THE

COURT TO FILE REHEARING IN BANC (Rule 26

& 27), “FILED BY LEAVE OF THE COURT DEC

2, 1986." Decided by ORDER: A suggestion

for rehearing in banc having been filed

in this case, UPON CONSIDERATION THEREOF,

it is ORDERED that the suggestion for

rehearing in banc is declined," dated Jan

ay 2987.

Appellant filed "Notice of Appeal,

in the UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT, WITH CERTIFICATE OF

SERVICE.

Iit

The United States Court of Appeals

for the Federal Circuit upheld a Claims

Court Decision which held that "Mr

Huntzinger failed to show deception or

fraudulent concealment of the true facts

that induced his justifiable reliance and

delay in bring(ing) the action.” In

short, the Claims Court held and affirmed

in the proposition that once Huntzinger

knew that he was relieved/ separated

from active duty in 1960, even though it

appeared to him to be a factually-valid-

discretionary separation. But in fact was

based upon a hidden and false initiative

to remove him for political reasons which

was frauduently concealed from him until

14 o

1979, the statute of limitations was to

run at that time regardless of whether he

had any known legal basis for bringing

suit. This proposition is contrary to the

law of various other courts, conflicts |

with other decisions of this circuit, and

the policy now supporting RULE >

F.R.C.P., and similar Rules which require

there to be a known reasonable basis upon

which to bring suit.

The entire thrust of Petitioner's

case and brief is that Huntzinger was the

target of ae hidden, fraudulent, and

deception initiative to remove him from

the Army on a "for cause" basis, a

for making a false complaint, but under

the guise and appearance of an annual

screening. In other words, Huntzinger's

removal was intentionally designed to

look to Huntzinger and on the face of his

personnel records "201" like an annual

screening release

from active duty, when it was in fact a

calculated and contrived scheme to

eliminate him for his IG complaint, and

to avoid a “for-cause" board action which

might have been used by LTC Canon in his

defense, and/or other senior officer(s)

relieved under the described, existing

chaos, fiasco, and conspiracies among the

Military Police Officers. (See APP 122)

This simultaneously “cover up", the true

mature of the personnel action against

Huntzinger, especially because documents

relating to an IG recommendation based

upon alleged false complaint were kept in

a separate classified “sequestered IG”

file, and thereby deprived him of

substantial regulatory and Constitutional

rights. On the facts which petitioner

knew or could have known in 1960 there

was no legal basis upon which he could

have brought suit. How could the statute

of limitations then have begun to run at

that time? The Court must accept as true

Huntzinger's allegations that many facts

were withheld, as reflected in the IG

record/memorandums, because the Claims

Court ruled on the basis of a summary

judcement.

Petitioner endeavored to review his

201 file at the time of his release and

on several occasions thereafter. However,

all of those documents which disclosed

consideration of the "for cause" aspects

of his removal--the third and hidden IG

initiative demonstrating his commander's

(Ft Hood) conclusion that ‘he had filed a

false and malicious IG complaint--were

SEQUESTERED apart from his official 201

file. Further, under Army Regulations

(AR) he had _ no right to see them, no

matter how diligently he may have

endeavored.

(For the record, the Commander,

Ft.Hood directing the investigation

Was relieved prior to completion

of investigation. New commander

approved curtailed investigation--

contained to privy of his Command

& Staff.

Requested witnesses by Petitioner

were declared not conveniently

available, including former

Commander, Deputy & disinterested

officers/NCOs).

Under the preceding prescribed

circumstances, letter by Huntzinger's

Counsel of 26 Jan 1960, with his letter

of Jan. 24, 1960 to the Commander

"confirm" the project “COVERED-UP,

CONCEALED, HIDDEN, and SEQUESTERED IG

recommendation" which Huntzinger was

advised of by interrogatories of 11 Sep

1959 responded to 4 Nov 1959--by silence,

and based on the review of his personnel

record, made reasonable assumption that

his response/appeal reviewed by HOs DA

completely EXHONORATED him of the Fort

Hood Allegations. No flagging action had

been initiated, AR 600-31, or “show cause

board" AR 15-6, and/or adverse action AR

640-98 and subsequent Command indorsement

recommending Retention on Active Duty

coupled with the Post (Ft Dix & Ft Drum)

Provost Marshal(s) and chain of command

strong indorsement's including the Chief

of Staff, Infantry Training Center, Ft

Dix; subsequently, conditions Ft Hood

“chaos, fiasco, and conspiracies" were

confirmed by MG Haydon L. Boatner, the

former Provost Marshal General, (App 122)

acknowledged by Executive Secretary,

BCMR "extremely important & new

evidence” disregarded upon STAFF DESPER

recommendation “time may have dulled the

memory of Gen Boatner." BCMR had obli-

gation make independent verification by

IG taking testimony. (App 120). IG

records were kept in a separate file in

Classified fashion under the designation

"FOR OFFICIAL USE ONLY" (FOUO) (App 214).

We submit that this was the intentional

culmination of the course of fraud and

deception; the very concealment of the

weapon used to extinguish Huntzinger's

career, the essence of fraudulent

concealment. How better to conceal the

true cause of Huntzinger's release and

the true nature of the proceeding against

him than to remove all records relating

to it from Official Files after the

mischievous end had been achieved? An

actual intent to conceal may be inferred

from the disparity between the use and

nature of the IG allegations before the

annual screening board and the Department

of Army's ultimate conclusion on the

“cover sheet" to the IG file that it

contained "NO PREJUDICIAL INFORMA-

TION" (APP 212). Thus, when Huntzinger

came to review his 201 file, the

documents concluding that he had made a

false complaint and his moral

disqualification were not there and he

had no reason to know and could not

discern that these were the true reasons

for his removal. In the absence of such

information, the statute of limitations

cannot begin to run until discovery, June

1979.

Even applying the Government's own

standard, we should prevail. The

Government notes that a cause of action

accrues "not later than the date of an

alleged illegal separation." (Appellee's

Br at 7). However it concedes "a limited

excep-tion...if the plaintiff establishes

either that the government concealed

facts or that the nature of the injury

was inherently unknowable at the time the

cause of action accrued," citing Costal

Petroleum Co. v. US, 228 Cl Ct 864, 866

(1981) cert. denied 456 US 915 (1982).

The first prong of this test -

concealment - is satisfied by the

personnel which were intended to and

which operated to hide the truth from

Huntzinger neither the second prong - the

inherent unknowability - is satisfied by

comparing the documents in Huntzinger's

201 file prior to 1979 to those in the

sequestered IG file, together with

apparent procedural regularity on the

face of Huntzinger's annual. screening

removal in 1960, and Huntzinger's absence

of knowledge of and access to the

“SEQUESTERED IG RECORDS."

At oral argument, the view was

stated that the purpose of the statute of

limitations is to “save the taxpayer's

money." That is simply an incorrect view

of the policy behind the statute.

"Saving money” is never a justification

for denial of an opportunity to bring

one's cause of action which passes due

process muster. Another view was that

upon separation Huntzinger should have

filed suit, presumably without basis, in

order to get discovery, and through that

the fraudulently facts would have been

found. That position flies in the face of

Rule 11 and its basis, and would as a

matter of policy cause unfounded suits to

be brought to the Claims Court simply,

speculation, to enable discovery of any

unknown initiative or fraudulent

concealment policy a prophylatic matter.

Further, one need only review the

attached law review article attached

verbatim, to understand that the law has

and should disavow the untendable

position which unnecessarily underlies

the panel's decision. Mr. Saul B. Shapiro

Clearly demonstrates the legal weakness,

and varying court opinions, decision.

The Government seems willing to

concede that Huntzinger did not know of

the “secret initiative" against him.

Then, the critical question is whether,

given the record here, Huntzinger should

have known... Put slightly differently,

does the record establish that

information needed by Huntzinger to

understand the true nature of his removal

in 1960, as distinguished from an annual

screening solely on the basis of

efficiency reports, was concealed from

him by acts of fraud and deception or was

otherwise unknowable? The answer is a

resounding "“yes." Conversely, were the

discretionary separation and his reclama

concerning efficiency report enough,

without more, to justify a suit by

Huntzinger? Two ERs one unit? The answer

is an equally unequivocal resounding

"NO!" Major General Biddle directed the

Fort Hood Inspector General to conduct an

investigation. It was not referred to a

higher echlone at this point, despite AR

20-1 (App 145), and was therefore subject

to command influence, as projected in

sworn testimony by Huntzinger's appeal

direct to HQ DA TIG 30 Jan and 7 Feb 1959

concerning the LTC Canon DA-IG

investigation & MP activity-Provost

Marshal Staff-Command relationships. At

that point Huntzinger requested that any

"investigation concerning himself be

eendueted by DA on the basis of his

letter of 24 January 1959 in conjunction

with his reclama to ERs received during a

9 month rating period assigned 720 MP Bn,

Ft Hood, reiterated in his sworn

testimony in response to interrogatories

forwarded to IG Ft Dix (App 65), dated 4

Nov 59 (App 75), appeal accepted under

advisement by DA TIG. No further action,

reasonable assumption response satisfied

DA, Huntzinger . was completely

EXHONORATED, Ft Hood IG allegations,

unfounded, as final review by DA-TIG.is

recorded (App 212) 3 Aug 1960.

LTC M.I. Freeman, the IG Action

Officer, in connection with the

Huntzinger complaint (App 159), regarded

Huntzinger as the target, rather than the

victim in the investigation. The

objective of the IG process became the

elimination of Huntzinger, without

reference tc a "board" of officers, not

mere exploration of Huntzinger's follow-

up letter to reclama of ERs, as requested

by his Sr. Commander, (unknown to

Huntzinger also under investigation

Classified "Secret" IG record - GSA

Archives "MP Activity Ft Hood", access

denied] re: LTC Canon) proper IG

recommendation/findings, without notifica-

tion to Huntzinger as required by AR 20-

1, resulted in submission to DA ADB for

removal under annual screening criteria,

with adverse-prejudicial matter consider-

ed in violation of Secretary Army

Instruction on guidance to the President,

DA ADB governing qualification of adverse

matter to be considered (Biddle v. US,

App 28) (conf :C4 AR 135-173), and charged

the board with responsibilitiy verifi-

cation of information considered pursuant

action under AR 135-173 (App 4) and 135-

215 (App 12); which was employed as a

"SHAM" to cause his sremoval without

"board" action governing “show for cause"

(requested ltr 19 Mar 60 denied)--was not

known--, indeed was suppressed from hin.

Fraudulent recommendation was not

verified (App Appellee 200) by OPMG

record.

Further submit that the true nature

of Huntzinger's removal from active duty

was "inherently unknowable" since the

myriad breaches of regulation(s) could

not have been known/ascertained without

knowledge of or reference to the

sequestered material that was withheld

until 1979. © Huntzinger sought and

reviewed all material related to his

release both then and later. On the face

of Huntzinger's Official 201 file, his

1960 release from active duty appeared to

be regular and based entirely upon the

efficiency reports. There was no

reference to the FOUO file, and without

knowing of its existence, its contents

are “inherently unknowable the negligent

conduct.” The duty to inquire is

triggered by the knowledge of the injury.

Here Huntzinger knew of his release, did

inquire further, but believed only that

he was being removed from active duty for

challenged OERs-ROA "Dual Loyalties." (APX

P-229) But, contrary to the Government's

assertion, Huntzinger was not "armed with

facts about” his true injury--his

Commander's (former) "secret" conclusion

on basis of a secret IG report that

Huntzinger had made a false and malicious

complaint to the IG, the improper and

surreptitious publications of that

conclusion to an elimination board, and

the ultimate cover-up of the entire

course of events through the use of the

separate "classified - SEQUESTERED FOUO

FILE" by TIG to include ADB action

documents.

To accept the Court's proposition,

Huntzinger should have sued without basis

prior to June 24, 1966, and had he done

so he might have discovered the true

basis for his release--and a basis for

his suit. In light of the recent policy

underpinings of changes to Rule 11, Fed.

Rs Cahs Bee such a position yields a

highly dangerous policy, and destroys the

due process rights of appellant by

denying him a meaningful opportunity to

bring suit, ie., ONLY after a reasonable

known basis exists.

The US Army in their update of AR 20-

1 para 1-30 recognize, need clairfy, use

of and entitlement "due process” when

employed in personnel action. (See APX P-

'232)- The service member is caught

between the “Rock & Hardstone" without

entitlement "due process" afforded by

government regulation in violation of his

guaranteed rights pursuant UCMJ-~ and

Constitutional Amendments which he must

defend. Hence, victim of those rights, by

illegal, wrongful, violations by misuse

of boards, concealed illegally, and

"hoodwinking." But, the soldier must

comply with orders, such as Huntzinger

did, rely upon the system, i.e., IG for a

fair and impartial investigation. This we

submit is in err, by acceptance at face

value without verification or

investigation.

—_ a Mk

ee UE OM A ee eg ee

i th alt all. i te ok

“P ‘The Yale

Law Journ

In Tribute to the Honorable Potter Stewart

Warren Burger George Bush

Benjamin Heineman _ Laurence H. Tribe

Rethinking the Theory of Legal Rights

Jules Coleman and Jody Kraus

The Emergence of Feminist Jurisprudence: An Essay

Ann Scales

Making Leon Worse

Steven Duke

More on Search Warrants, Good Faith, and Probable Cause

Donald Dripps

State and Federal] Land Use Regulation: An Application

to Groundwater and Nonpoint Source Pollution Control

Article III Implications for the Applicability of the

Seventh Amendment to Federal Statutory Actions

Citizen Trust and Government Cover-up: Refining

the Doctrine of Fraudulent Concealment

Intercircuit Conflicts and the Enforcement

of Extracircuit Judgments

Reviews:

Quis custodiet ipsos custodes?

Geoffrey C. Hazard, Jr.

Slouching Toward Crime

John Monahan

Volume 95 June 1986 Issue 7

a -~

Citizen Trust and Government Cover-up:

Refining the Doctrine of Fraudulent

Concealment

Saul B. Shapiro

More than a decade after Watergate, neither Congress nor the federal

courts have developed law that adequately guards against the govern-

ment’s ability to cover up its wrongdoing and later escape liability by

pleading the statute of limitations. To determine when the limitations pe-

riod begins to run on claims concealed by the government, federal courts

employ the tolling standard designed to address relations between parties

at arm’s length. The government-citizen relationship, however, includes

an element of trust and an imbalance of power and access to information

that are not present in arm’s length dealings. Federal tolling doctrine

should be refashioned to reflect that relationship. This Note argues that

courts can do this by analyzing cases alleging government cover-up under

the tolling standard applied to parties between whom there is a special

relationship of trust or confidence.

I. FRAUDULENT CONCEALMENT AND THE GOVERNMENT

A. The Doctrine

Whenever a party knowingly commits a tort that is self-concealing, or

commits a tort and then covers it up, the party is guilty of fraudulent

concealment.’ A self-concealing tort is one which is inherently unknow-

able, or which is part of a larger scheme that includes acts designed to

4. Modern fraudulent concealment doctrine is usually traced back to Bailey v. Glover, 88 U.S. (21

Wall.) 342 (1875), and Wood v. Carpenter, 101 U.S. 135 (1879), in which the Supreme Court

adopted the doctrine as a matter of federal common law. For a history of how the doctrine has evolved

from the common law, see Dawson, Undiscovered Fraud and Statutes of Limitation, 31 Micu. L.

Rev. 591 (1933) [hereinafter cited as Dawson, Undiscovered Fraud), and Dawson, Fraudulent Con-

cealment and Statutes of Limitation, 31 Micn. L. Rev. 875 (1933) [hereinafter cited as Dawson,

Fraudulent Concealment). A more recent treatment is available in Marcus, Fraudulent Concealment

in Federal Court: Toward a More Disparate Standard?, 71 Gro. L.J. 829 (1983).

At one time the two types of fraudulent concealment were thought of as separate doctrines. A!-

though some courts still make a distinction between self-concealing torts and those that are subsc-

quently concealed, see infra note 39, courts and commentators tend to see both types as comprising the

single doctrine of “fraudulent concealment,” see, ¢.g., Hobson v. Wilson, 737 F.2d 1, 33 n.102 (D.C.

Cir. 1984), cert. denied sub nom. Brennan v. Hobson, 105 S. Cr. 1843 (1985); Marcus, supra, at

870.

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The Yale Law Journal Vol. 95: 1477, 1986

prevent the victim from discovering his cause of action.* In such cases, the

injury or its cause frequently is not apparent to the victim until after the

limitations period has run.* Fraud is the prototypical example,‘ but a

slowly germinating toxic tort® or even a clandestine effort by law enforce-

ment agencies to discredit anti-war activists would also fit into this cate-

gory.* The second type of concealment occurs when a tort is followed by

acts or statements intended to cover up the initial wrongdoing.” In these

cases, the injury may be apparent, but the cause of action is concealed.

The Army’s attempt to cover up the fact that it conducted fatal chemical

warfare experimentation on an unwitting patient is an example of this

type of concealment.®

In these circumstances, a court must decide whether to toll® the statute

of limitations. As the Supreme Court explained over a century ago, stat-

utes of limitation:

were enacted to prevent frauds . . . . To hold that by concealing a

fraud, or by committing a fraud in a manner that it concealed itself

until such time as the party committing the fraud could plead the

statute of limitations to protect it, is to make the law which was

designed to prevent fraud the means by which it is made successful

and secure."

2. See Hobson, 737 F.2d at 33-34. In the case of the inherently unknowable tort, some courts

papel g ony asartnamn eat Bi renagiggh on nae @ by, at the least, “construct/ing]}

ortgage Corp., 459 F. Supp. 108,

-concealing

reaud, supra note 1 (same).

Se ooo otis ciean eacgunien oum

. at one time the commission of a self-concealing tort was classified as fraudulent con-

cealment only if the concealed cause of action itself was premised on fraud. This approach has been

supra note 1, icon

supra note

’ F.2d 1, 36-37 (D.C. Cir. 1984) (federal and local low enforcement

agencies engaged in campaign of wiretapping and disinformation to undermine civil rights and anti-

war groups), cert. denied sub nom. Brennan v. Hobson, 105 S. Cr. 1843 (1985).

7. See, ¢.g., Hohri v. United States, 782 F.2d 227, 248 (D.C. Cir. 1986) (government covered up

knowledge that there was no military necessity for West Coasi concentration camps during World

War II). See generally Hobson, 737 F.2d at 33-34 (discussing affirmative concealment); Dawson,

Fraudulent Concealment, supra note 1, at 877-82 (same).

8. See Barrett v. United States, 689 F.2d 324 (2d Cir. 1982), cert. denied sub nom. Cattell v.

9. “To suspend or stop temporarily.” Biacn’s Law Dicrionary 1334 (Sth ed. 1979).

10. Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349 (1875). As a more recent court explained

fraudulent concealment:

In such cases, the underlying policy of the statute of limitations, discouraging litigation of

“stale” claims, does not arise. The claim is not stale. It merely took time to accrue. Genuine

pereirginnaly ag plcomany pees oF peng ny ge. ede pn sngammaaa

greater concern that legal wrongs be remedied at the

Allen v. United States, 588 F. Supp. 247, 341 (D. Utah 1984

Government Cover-up

The common law developed two standards for tolling the statute of lim-

itations in cases of fraudulent concealment." One standard is applied to

parties at-arm’s length,’ the other to parties between whom there is a

relationship of trust or confidence. Under both standards the defendant’s

concealment of material information surrounding his wrongdoing tolls the

limitations period until plaintiff discovers, or in the exercise of due dili-

gence should have discovered, the concealed cause of action.** Within that

common framework, however, the two standards are very different. The

arm’s length standard takes a much more expansive view of what should

place a plaintiff on notice of his claim, and a much narrower view of what

constitutes concealment. For the plaintiff seeking to toll the limitations

period, the decision of which standard is applied can determine whether

or not he is able to bring his substantive claim in court.

Under the arm’s length standard, the diligence of the plaintiff's inquiry

into the existence of a claim is judged according to an objective reasonable

person standard. No allowance is made for any trust plaintiff may have

had in the honesty of defendant’s behavior or representations.** More im-

portant, the arm’s length rules define concealment very narrowly: The

defendant is under no duty to disclose her wrongdoing. Her silence will

not stop the clock from running on an injured plaintiff's cause of action.’

Indeed, the defendant’s denial of wrongdoing does not constitute fraudu-

lent concealment, and will not serve to toll the statute of limitations.’”

Courts find the arm’s length standard too harsh to apply to certain

relationships. In relationships where the concealing party’s honesty

or forthrightness is expected or should be encouraged, courts

apply a different standard.** Under this “trusted defendant” stan-

11. The Seventh and Second Circuits apply a slight modification of these standards. See infra note

39.

12. See infra notes 15-16 and accompanying text.

13. See infra notes 18-22 and accompanying text.

14. See, e.g., Ramsey v. Culpepper, 738 F.2d 1092, 1098 & n.2 (10th Cir. 1984) (applying

trusted defendant standard); Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977) (applying

arm’s length standard).

15. See, ¢.g., Campbell v. Upjohn Co., 498 F. Supp. 722, 727-28 (W.D. Mich. 1980), aff'd, 676

F.2d 1122 (6th Cir. 1982); Long v. Abbott Mortgage Corp., 459 F. Supp. 108, 117 n.5 (D. Conn.

1973). See generally Marcus, supra note 1, at 878-82 (discussing objective standard).

16. See Wood v. Carpenter, 101 U.S. 135, 143 (1879); Rutledge v. Boston Woven Hose & Rub-

ber Co., 576 F.2d 248, 250 (9th Cir. 1978); Dayco Corp. v. Firestone Tire & Rubber Co., 386 F.

Supp. 546, 549 (N.D. Ohio 1974), aff'd, 523 F.2d 389 (6th Cir. 1975). See generally Marcus, supra

note 1, at 864-65 (discussing rules governing concealment).

17. See, e.g., Davis v. United States, 642 F.2d 328, 332 (9th Cir. 1981), cert. denied, 455 US.

919 (1982); Peck v. United States, 470 F. Supp. 1003, 1019 (S.D.N.Y. 1979); Dayco, 386 F. Supp. at

549. But see Rutledge, 576 F. Supp. at 250 (stating in dictum that denial “may” in certain circum-

stances constitute concealment). See generally Marcus, supra note 1, at 861-64 (discussing denial).

18. See Dawson, Fraudulent Concealment, supra note 1, at 879 & n.i1 (citing cases); Dawson,

Undiscovered Fraud, supra note 1, at 610-14. For a more elaborate discussion of the relationships

which have warranted the different standard, see infra note 22.

- 1479

The Yale Law Journal Vol. 95: 1477, 1986

dard,** the concealing party is under a duty to disclose his wrongdoing to

the plaintiff. His failure to disclose, or his denial of wrongdoing, consti-

tutes fraudulent concealment, tolling the statute of limitations.** As under

the arm’s length standard, the limitations period remains tolled until the

injured party discovers, or in the court’s judgment should have discovered,

the concealed cause of action. But in determining when the plaintiff

should have discovered the concealed cause of action, the existence of the

relationship of trust reduces the degree of diligence required of the plain-

tiff. The plaintiff has no duty to mistrust the statements of the trusted

defendant, and may rely on him to disclose all facts material to any

wrongdoing. Thus, the plaintiff is excused from investigating facts that, in

an arm’s length relationship, would put him on notice of possible

wrongdoing.™?

The relationships that have been found to warrant the trusted defend-

ant standard cannot easily be categorized. While the standard applies to

fiduciary relationships, it also applies to a wide range of relationships that

do not meet that strict legal standard.** Because the labels courts have

19. There is no formal term for this standard. The relationships that give rise to the standard

have been given many labels. See infra note 22. The term “trusted defendant” seems most descriptive

of the full panoply of relationships to which the standard has been applied.

20. See, ¢.g., Ramsey v. Culpepper, 738 F.2d 1092, 1098 n.2 (10th Cir. 1984); Canton Lutheran

Church v. Sovik, Mathre, Sathrum & Quanbeck, 507 F. Supp. 873, 878 (D.S.D. 1981); see also

Rutledge, 576 F.2d at 250 (discussing trusted defendant standard). See generally Developments in the

Law—Statutes of Limitations, 63 Harv. L. Rev. 1177, 1221 (1950) [hereinafter cited as Develop-

ments] (same).

21. See, ¢.g., Ramsey, 738 F.2d at 1098 n.2; Bennett v. Hibernia Bank, 47 Cal. 2d 540, 550, 305

P.2d 20, 33 (1957).

Application of the trusted defendant standard does not, however, relieve plaintiff of his duty to

make a reasonable investigation; it only affects what the court considers reasonable. See, ¢.g., Hupp v.

Gray, 500 F.2d 993, 997 (7th Cir. 1974) (limitations period had run on plaintiff's claim despite ~

“fiduciary relationship”); see also Gee v. CBS, Inc., 471 F. Supp. 600, 630 (E.D. Pa.) (“the phrase

‘breach of fiduciary duty’ is not talismanic, in the presence of which the statute of limitations withers

away”), aff'd, 612 F.2d 572 (3d Cir. 1979).

22. See Dawson, Fraudulent Concealment, supra note 1, at 879 n.11 (citing cases “where the

plaintiff's reliance was justified, not by the ‘fiduciary’ character of the defendant’s obligation inferred

as a matter of law, but by an expectation of good faith known to the other party and abused”);

Ramsey, 738 F.2d at 1096 (tolling limitations peried in light of “confidential” relationship between

elderly absentee landlord and local real estate broker); Spinelli, Kehiayan-Berkman, S.A. v. Imas

Gruner, A.A. & Assoc., 602 F. Supp. 372, 375 (D. Md. 1985) (tolling limitations period in light of

“fiduciary” relationship between managing partners and limited partners); Canton Lutheran Church

v. Sovik, Mathre, Sathrum & Quanbeck, 507 F. Supp. 873, 878 (D.S.D. 1981) (tolling limitations

period in light of relationship of “trust and confidence” between architect and client); Developments,

supra note 20, at 1221 (relationships “of a fiduciary nature” warrant trusted defendant standard).

Perhaps the best exegesis of the relationships to which the trusted defendant standard has been

applied is contained in the Restatement’s definition of confidential relations:

A confidential relation exists between two persons when one has gained the confidence of the

other and purports to act with the other’s interest in mind. A confidential relation may exist

ee ee ee ae eae

relationship or one of friendship .

1 Restatement (SECOND) oF Trusts n 200) (1959).

1480

eee

Government Cover-up

used to describe relationships warranting the standard are not exact®* and

often appear to be attached without sufficient care,** an understanding of

which relationships warrant the trusted defendant standard is better

gleaned from an analysis of the factors courts have considered relevant

than from the labels they have attached. In general, courts apply the stan-

dard to relationships in which there is trust or confidence between the

parties,** where there is an inequality of power between the parties,** or

where the concealing party has vastly superior access to information con-

cerning the concealed cause of action.*” Courts have taken note of particu-

lar categories of relationships that are expected to give rise to a duty of

- honesty and forthrightness.** Those categories, however, while extremely

relevant to the courts’ decisions, have not been dispositive. Instead, courts

usually decide which tolling standard to apply on the basis of the sum of

relations between the parties.**

23. See 15A C.J.S. Confidential (1955) 355 (confidential relationships “impossible of exact or

precise definition”); Coffee, From Tort to Crime: Some Reflections on the Criminaiization of Fiduci-

ary Breaches and the Problematic Line Between Law and Ethics, 19 Am. Crim. L. Rev. 117,

154-56 (1981) (definition of fiduciary duty varies from state to state).

24. See 1 Restatement (SECOND) oF Trusts § 4 (1959) (“the term ‘trust’ is sometimes used

loosely” giving rise to unjustified range of duties); Coffee, supra note 23, at 141 (“the term ‘fiduciary’

can become a substitute for close analysis, a rhetorical flourish to be used in place of a logical distinc-

tion”); see also United States v. Margiotta, 688 F.2d 108, 142 (2d Cir. 1982) (Winter, J., dissenting)

(“{t]he words fiduciary duty are no more than a legal conclusion and the legal obligations actually

imposed under that label vary greatly from relationship to relationship”), cert. denied, 461 U.S. 913

(1983).

25. See, e.g., Ramsey, 738 F.2d at 1097 (tolling statute of limitations in light of elderly absentee

landlord’s trust in local real estate broker); State Farm Mut. Auto. Ins. Co. v. Ling, 348 So. 2d 472,

475 (Ala. 1977) (because adversary insurance company had gained plaintiffs confidence, its failure to

tell him that limitations might run on his claim tolled the limitations period). See generally Dawson,

Fraudulent Concealment, supra note 1, at 879 n.11 (citing cases).

26. See, ¢.g., Ramsey, 738 F.2d at 1096 (plaintiff's dependence on defendant is factor in tolling

standard); Baselski v. Paine, Webber, Jackson & Curtis, Inc., 514 F. Supp. 535, 540 (N.D. Ill. 1981)

(tolling limitations based on plaintiff's relative “unsophistication”). See generally Dawson, Fraudu-

lent Concealment, supra note 1, at 879 (“personal inequality” is factor warranting change in tolling

standard).

27. See, e.g., Ramsey, 738 F.2d at 1097 (tolling limitations in part because defendant was plain-

tiff's only source of information about events surrounding wrongdoing); State Farm Mut. Auto. Ins.

Co. v. Ling, 348 So. 2d 472, 475 (Ala. 1977) (limitations tolled in part because of defendant's “special

and superior knowledge”).

28. See, e.g., Spinelli, Kehiayan-Berkman, S.A. v. Imas Gruner, A.1.A. & Assoc., 602 F. Supp.

372, 375 (D. Md. 1985) (managing partners and general partners); Bazelski, 514 F. Supp. at 540

(investor and securities firm).

29. When the formal relationship between the parties suggests that the trusted defendant standard

is applicable, but the facts indicate otherwise, the court will apply the arm’s length standard. See, ¢.g.,

Tonsmeire v. Tonsmeire, 285 Ala. 454, 456, 233 So. 2d 465, 467 (Ala. 1970) (arm’s length standard

applied in libel suit brought by wife against husband where “trust and affection has vanished from

their relationship”).

1481

The Yale Law Journal Vol. 95: 1477, 1986

B. Government Concealment Under the Arm’s Length Standard

Federal courts® analyze government™ cover-up under the arm’s length

standard.** The arm’s length standard’s limitations on what constitutes

concealment does not account for any faith the plaintiff may place in the

honesty of government statements or conduct. Under the arm’s length

standard, the government has no duty to inform citizens of the injuries it

30. This discussion will focus on federal fraudulent concealment doctrine. Since the Supreme

Court’s 1946 holding that federal fraudulent concealment doctrine is read into “every” federal cause

of action, Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946), federal courts have applied federal

fraudulent concealment doctrine to adopted state statutes of limitation as well as to federal statutes of

limitation. See generally Marcus, supra note 1, at 831-33, 839-41 (discussing emergence and extent

of federal fraudulent concealment doctrine). Federal fraudulent concealment doctrine thus applies to

tort suits based on federal causes of action against federal, state and local government and government

officials. This includes suits where a federal limitations period is prescribed in the statute, for exam-

ple, under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), 2671-80 (1982) (which con-

tains a limitations period at 28 U.S.C. § 2401(b) (1982)), ¢.g., Barrett v. United States, 689 F.2d 324,

327 (2d Cir. 1982), cert. denied sub nom. Cattell v. Barrett, 462 US. 1131 (1933), and under the

Tucker Act, 28 U.S.C. § 1346(a)(2) (1982) (which includes a limitations period at 28 U.S.C. 2401(a)

(1982)), ¢.g., Hohri v. United States, 782 F.2d 227, 246 (D.C. Cir. 1986). In addition, this discussion

will assume that federal courts will continue to apply federal fraudulent concealment doctrine to

adopted state statutes of limitation. Some uncertainty concerning the source of tolling doctrine was

created by Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975), and Board of Regents v.

Tomanio, 446 U.S. 478 (1980), which together can be read broadly to require federal courts to apply

state tolling doctrine when adopting state statutes of limitation. Nevertheless, federal courts continue

to apply federal fraudulent concealment doctrine to adopted state statutes of limitation. See, ¢.g., Se-

vier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984) (applying federal doctrine to adopted state matute

of limitations in suit under 42 U.S.C. § 1983 (1982)); Richards v. Mileski, 662 F.2d 65, 68 (D.C.

Cir. 1981) (applying federal doctrine to suit directly under the Constitution); see also Marcus, supra

note 1, at 845-55 (federal courts should continue to apply federal doctrine). Bul see Vest v. Bossard,

700 F.24 600, 602-04 (10th Cir. 1983) (applying state law to suit under § 1983).

n.41, Yer cura eg 0) state law to adopted state statutes of limitation there would be

an even more compelling need for the application of the trusted defendant standard to government

concealment.

31. “Government” will refer to federal, state and local governments and government officials.

Fraudulently concealed federal actions against these may be tolled according to traditional

tolling principles under the Supreme Court’s holding in Holmberg, 327 U.S. at 397, that federal

fraudulent concealment tolling doctrine is read into “every” federal cause of action (without regard to

the identity of the parties). See Hohri v. United States, 782 F.2d 227, 247 (D.C. Cir. 1986) (discuss-

ing Holmberg); see also supra note 30 (citing cases tolling actions against government).

On two occasions, courts have held that because statutes of limitations governing suits against the

United States are limited waivers of the government's sovereign immunity to which exceptions are to

be strictly construed, fraudulent concealment does not apply. See Hammond v. United States, 388 F.

Supp. 928, 934 (E.D.N.Y. 1975); Richter v. United States, 551 F.2d 1177, 1177 (9th Cir. 1977)

(following Hammond without explanation). Both decisions have been superceded. See Gibson v.

United States, 781 F.2d 1334, 1344-45 (9th Cir. 1986) (superceding Richter); Barrett, 689 F.2d at

330 (superceding Hammond). As Hohri pointed out, courts adopted the doctrine of fraudulent con-

cealment long before the middle of the nineteenth century. To hold that the doctrine was not incorpo-

rated into any subsequently enacted federal statute of limitations would do violence to congressional

intent. Hohri, 782 F.2d at 247-48.

32. See, ¢.g., Hobson v. Wilson, 737 F.2d 1, 33-36 (D.C. Cir. 1984), cert. denied sub nom.

Brennan v. Hobson, 105 S. Cr. 1843 (1985); Davis v. United States, 642 F.2d 328, 332 (%h Cir.

1981), cert. denied, 455 U.S. 919 (1982); Peck v. United States, 470 F. Supp. 1003, 1019 (S.D.N.Y.

1979).

1482

Government Cover-up

has caused them.** It may remain silent whiie the limitations period runs

on their claims.* The limitations period will not be tolled if the govern-

ment denies responsibility—even if it knowingly lies—in response to a

citizen’s request for information about his injury.** Indeed, one court held

that the government’s denial of wrongdoing should have aroused plaintiff's

suspicion and put him on notice of his claim.**

Similarly, the arm’s length standard’s objective due diligence test does

not make allowances for a citizen’s trust in government.*” Without regard

to whether government concealment might have posed a special bar to

particular plaintiffs, courts have held that plaintiffs failed to exercise suf-

ficient diligence in pursuit of their claims.** Despite the fact that many of

these decisions are often based on no more than speculation about what

should have put a plaintiff on notice of her claim,™* some plaintiffs have

33. See Davis v. United States, 642 F.2d 328, 332 (9th Cir. 1981) (“It may well be that the

government was negligent in maintaining and publishing records. However, failure of the government

to ascertain and publish the fact of its negligence is hardly sufficient to constitute fraudulent conceal-

ment.”), cert. denied, 455 U.S. 919 (1982); Hauptmann v. Wilentz, 570 F. Supp. 351, 399 (D.N.J.

1983), aff'd, 770 F.2d 1070 (3d Cir. 1985); Peck v. United States, 470 F. Supp. 1003, 1019

(S.D.N.Y. 1979) (“As to the failure to disclose the government’s role in the Freedom Ride in the 1961

action, the law is clear that, in the absence of a fiduciary duty between the parties, mere failure to

disclose the existence of a cause of action does not constitute concealment.”).

34. See Hernandez Jimenez v. Colero Toledo, 604 F.2d 99, 101-02 (ist Cir. 1979); Hauptmann,

570 F. Supp. at 399; Peck, 470 F. Supp. at 1019.

35. See Davis, 642 F.2d at 332; Hauptmann, 570 F. Supp. at 399; Peck, 470 F. Supp. at 1019;

see also Welcker v. United States, 752 F.2d 1577, 1583 (Fed. Cir.) (rejecting argument that govern-

ment employee's suit to recover for wrongful dismissal in 1950's loyalty security proceeding was tolled

by belief that judicial protest would have been futile in the face of government denial and “the tenor

of the times”), cert. denied, 106 S. Ct. 83 (1985).

36. Davis, 642 F.2d at 332 n.10 (government press release and reports denying connection be-

tween government polio vaccine and contraction of polio should have helped to put polio victim on

notice of his claim).

37. See Richards v. Mileski, 662 F.2d 65, 71 (D.C. Cir. 1981) (applying reasonable person stan-

dard in suit alleging government concealment).

38. For example, in Hernandez Jimenez v. Colero Toledo, 604 F.2d 99 (1st Cir. 1979), the court

held that piaintiff, a government official fired for political reasons, did not make a diligent search into

"the circumstances surrounding his dismissal. The court did not consider that evidence of the political

conspiracy might have been difficult to uncover. The court even went so far as to suggest that the fact

that plaintiff's friend eventually learned of the conspiracy by overhearing a discussion at a celebration

in a village square was evidence of how easily the information could have been obtained. Id. at 102.

See also Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984) (limitations had run on civil rights

action against law enforcement officers because plaintiff should have known his legal rights were

being violated and that he had a right to counsel).

39. It is hard to summarize due diligence decisions. While plaintiffs have been held to have been

Put Gn notice of their claims by newspaper articles they did not necessarily read, see cases cited infra

note 41, other courts have found that plaintiffs may not have been put on notice by massive and

relatively undisguised torts. Pollard v. United States, 384 F. Supp 304, 307-08 (M.D. Ala. 1974)

(rejecting government's motion for summary judgment in suit brought by plaintiff class of former

participants in 1940’s syphilis study). Circuit courts have simply disagreed with the court below over

whether the concealed information was necessary to put the plaintiff on notice of his claim, compare

Fitzgerald v. Seamans, 384 F. Supp. 688, 694 (D.D.C. 1974) with Fitzgerald, 553 F.2d 220, 229

(D.C. Cir. 1977); or whether the plaintiff should have been more diligent, compare Hohri v. United

States, 586 F. Supp. 769, 791 (D.D.C. 1984) with Hohri, 782 F.2d 227, 251-55 (D.C. Cir. 1986).

The presence of the government as the defendant only exacerbates a general difficulty the courts

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The Yale Law Journal Vol. 95: 1477, 1986

been barred on the basis of the limited facts available at the pleading

stage.** One court dismissed a claim alleging constitutional injuries be-

cause of its belief that constructive notice was created by reporting in the -

“nation’s leading newspapers.”*? Where courts have held that plaintiffs

are put on notice of their claims by the mere awareness of their in-

jury—rather than when they know of a particular cause of action against

particular defendants**—the difficulties facing plaintiffs under the arm’s

length standard are exacerbated.*

actual discovery of the cause of action when torts have been affirmatively concealed. See Tomera v.

Galt, 511 F.2d 504, 510 (7th Cir. 1975); Robertson v. Seidman & Seidman, 609 F.2d 583, 593 (2d

Cir. 1979); McConnell v. Frank Howard Allen & Co., $74 F. Supp. 781, 788 (N.D. Cal. 1983). This

in the doctrine has not been followed widely. See, ¢.g., Cambell v. Upjohn, 676 F.2d 1122,

1127 (6th Cir. 1982) (actual discovery standard “would have the statute tolled indefinitely, while

evidence stales, memories fade and courts and adversaries wait, until the plaintiff at his leisure alleges

actual discovery”); see also Hohri, 782 F.2d at 248 & n.54 (following Campbell, but noting that split

may be “more apparent than real” because active concealment cases have involved such effective con-

cealment that no plaintiff could be expected to uncover wrongdoing).

40. See, ¢.g., Lee v. Kelley, No. 76-1185, slip op. (D.D.C. Jan. 31, 1977) (on motion to dismiss

rejecting plainti s argument that government concealment tolled the limitations period); see also

Richards v. Mileski, 662 F.2d 65, 73 (D.C. Cir. 1981) (reversing district court that granted govern-

ment’s motion to dismiss without even hearing oral argument on the issue of concealment); Smith v.

Nixon, 606 F.2d 1183, 1186 (D.C. Cir. 1979) (reversing district court’s dismissal of plaintiff's allega-

tion of government concealment on motion to dismiss), cert. denied, 453 US. 912 (1981). As the

‘There is an inherent problem in using a motion to dismiss for purposes of raising a statute of

limitations defense. Although it is true that a complaint sometimes discloses such defects on its

face, it is more likely that the plaintiff can raise factual setoffs to such an affirmative defense.

662 F.2d at 73. See generally Marcus, supra note 1, at 904 (arguing that courts should cease practice

of dismissing claims alleging fraudulent concealment on pleadings).

41. Lee, slip op. at 3 (civil rights action filed by former assistant to Dr. Martin Luther King

accrued not when illegal wiretapping was revealed in 1975 Senate report but in 1960's when the

“nation’s leading newspapers were rife with accounts of buggings of Dr. King”); see also United

Klans of America v. McGovern, 621 F.2d 152, 154 (Sth Cir. 1980) (plaintiffs put on notice by press

ng). But see Hobson v. Wilson, 737 F.2d 1, 39 n.118 (D.C. Cir. 1984) (plaintiff's claim re-

mieins alive if he did not read newspaper article that would have put him on notice), cert. denied sub

nom. Brennan v. Hobson, 105 S. Ct. 1843 (1985).

42. See Hobson, 737 F.2d at 35, 36 (discussing standard and citing cases).

43. For example, in Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986), the court barred a

Federal Tort Claims Act claim alleging that, as part of an effort to hinder plaintiff's political activi-

ties, FBI agents directed an agent provocateur to steal documents from plaintiff's garage and set the

garage on fire to cover his tracks. Plai tiff also alleged that the FBI further concealed its actions by

filing a fictitious account of the incident with the local fire department, blaming the fire on a negligent

marijuana-smoking teenager. Id. at 1343. The court rejected plaintiff's argument that the limitations

period should have been tolled until she discovered the government's role in the wrongdoing. Rather

than treating the entire scheme as a self-concealing tort, see supra text accompanying notes 2-6, or

the fire and the phone call to the fire department as affirmative acts of concealment following the

original tort, ses supre text accompanying notes 7-8, and tolling the limitations period until plaintiff

could bring a claim against particular defendants, the court treated the call as the only act of conceal-

ment. 1d. at 1345, The court analyzed the fire under a medical malpractice accrual standard, holding

that the limitations period began to run almost immediately after the blaze was discovered; i.e., at the

point that plaintiff knew the fact of her injury (the lost garage) and its cause (the fire). Id. at 1344. In

Government Cover-up

Application of the arm’s length standard to government-citizen relation-

ships has been damaging as much for the confusion it has created as for

the injustices it has wrought. Faced with egregious acts of government

cover-up, federal courts, particularly at the circuit level, have found a va-

riety of ways to keep suits alive. A few courts have gone outside the pa-

rameters of equitable tolling doctrine in attempts to take account of the

government-citizen relationship.** More. often, however, courts have ap-

plied aspects of the trusted defendant standard under the rubric of the

arm’s length doctrine. Thus, courts have reduced the diligence required of

plaintiffs alleging government cover-up.** In addition, one court expanded

its definition of concealment to include denial,** and at least two courts

have come close to imposing on government a duty of disclosure.

In Allen v. United States,*” a suit to recover damages for cancer and

leukemia allegedly caused by atomic testing in Nevada, the court noted

that the “clock of limitations could have started to run a long time ago had

the [government] but started it by imparting to the population at risk that

which it then knew or had reason—and real opportunity—to know and

which the plaintiffs are just now finding out.’** Similarly, in Hohri v.

its fraudulent concealment analysis, the court held that the fictitious report the FBI filed with the fire

department did not constitute concealment because evidence available immediately after the fire was

discovered suggested arson. Jd. at 1345. For a discussion distinguishing accrual under medical mal-

practice from tolling under fraudulent concealment, see Hohri v. United States, 782 F.2d 227, 249

n.56 (D.C. Cir. 1986).

44. See Bell v. Milwaukee, 746 F.2d 1205, 1229-31 (7th Cir. 1984) (employing Wisconsin equi-

table estoppel doctrine to ensure a remedy for plaintiffs seeking redress for gross civil rights violations

by police officers); Saffron v. Wilson, 481 F. Supp. 228, 255 (D.D.C. 1979) (altering pleading and

discovery requirements for plaintiff alleging fraudulent concealment by the Secret Service). For a

discussion of why equitable estoppel is not an adequate substitute for the arm's length standard, see

infra note 105 and accompanying text.

45. See Liuzzo v. United States, 485 F. Supp. 1274, 1284 (E.D. Mich. 1980) (“activity that tends

to hide the participation of government related personne! in torts that occur in the course of their

duties may provide a longer time to those injured to make claims than would be true if other methods

were used”).

46. See Smith v. Nixon, 606 F.2d 1183, 1191 n. 44 (D.C. Cir. 1979), cert. denied. 453 U.S. 912

(1981) (defendant government officials’ incorrect denial of allegations of wrongdoing made in press

and failure to inform Department of Justice of wiretap records that were relevant to related criminal

Prosecution constituted fraudulent concealment). The basis of the Smith holding is unclear. First, it is

unclear whether the denial itself was sufficient to constitute concealment. Assuming that it was, the

court’s reasoning remains a mystery. The court specifically rejected the possibility that fiduciary rela-

tions existed between the parties, id. at 1190, yet purported to follow “traditional” tolling doctrine.

Id. at 1191 n.44. The court's reasoning, however, is hardly traditional: The court drew an analogy

between the government's conduct in the case before it, and the cloak of secrecy that surrounded the

government's wrongdoing in Fitzgerald v. Seamans, 553 F.2d 220 (D.C. Cir. 1977). In Fitzgerald,

the court had held that the secretive nature of a tortious government investigation was an aggravating

factor in the court's decision to apply fraudulent concealment doctrine. Jd. at 228. The Richards court

held that the government officials’ acts in the case before it constituted the same type of “affirmative

acts” as had been perpetrated in Fitzgerald. However, while the secret nature of the actions in Fitz-

gerald conforms to the traditional model of the self-concealing tort, see supra text accompanying notes

2-6, the denial does not, see supra text accompanying note 17. ,

47. 588 F. Supp. 247 (D. Utah 1984).

48. Id. at 347 (footnote omitted).

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United States,** a suit brought on behalf of the Japanese-Americans in-

terned in American concentration camps during World War II, the court

held that government concealment of the absence of military necessity for

the camps from the public and the Supreme Court tolled the limitations

period until “‘an authoritative statement by one of the political branches,

purporting to review the evidence when taken as a whole, could rebut the

presumption articulated in Korematsu.”*

Although these cases may signal a move away from strict application of

the arm’s length standard, no court has done more than provide an incom-

plete and ad hoc response to problems with the standard.“ The Hohri

court went so far as to couple its holding with the caveat that the facts

before it were “sui generis,” and its decision was “not the occasion to

establish a new rule to govern future cases.”** Thus, although some courts

have refused to allow the plaintiffs before them to go without relief, by

failing to articulate a coherent standard they have left future plaintiffs

confronting government cover-up without adequate protection.

Il. THe GovERNMENT AS TRUSTED DEFENDANT

Citizen allegations of government concealment demand analysis under

the trusted defendant standard.** From the totality of its political and le-

gal dealings with its citizens, government engenders a special respect from

and gains power over many citizens that should be reflected in the tolling

doctrine. Applying the trusted defendant standard to most government-

citizen relationships would give courts a principled way to respond to the

difficulties facing plaintiffs confronting government cover-up.

This Part will demonstrate that most government-citizen relationships

include all the attributes that have prompted courts to apply the trusted

defendant standard: trust,“ an imbalance of power,” and the concealing

party’s monopoly over information relating to its wrongdoing.” It will

then discuss federal decisions recognizing that the relationship of trust be-

tween government and citizen imposes a special duty of honesty and dis-

49. 782 F.2d 227 (D.C. Cir. 1986).

50. Hohri, 782 F.2d at 251. The court stopped short of imposing a full duty of disclosure, how-

ever, holding that Congress’ creation of a commission to investigate the concentration camps rather

than the commission's subsequent findings was sufficient to start the limitations period. Id. at 253.

$1. Even when circuit court panels agree to toll the limitations period, they can not always agree

why. Vest v. Bossard, 700 F.2d 600 (10th Cir. 1983) (three judge panel! split three ways on

why limitations should be tolled in suit alleging massive cover-up by local government officials).

Citizens. note 104.

54. See supra note 25.

55. See supra nove 26.

56. See supre note 27.

Government Cover-up

closure on government and its officials. It will conclude by explaining how

the two courts that have considered and rejected the application of the

trusted defendant standard to government-citizen relationships have mis-

perceived the doctrine’s scope and effect.

A. Common Law Factors

1. Trust in Government

While faith in government was eroded by Watergate and other scandals

in the early Seventies, recent polls show a resurgence of trust in govern-

ment®’ and in government officers.** No poll, of course, can gauge the

symbolic power of official action.“ The presumptive legality of govern-

ment action affects a citizen’s readiness to suspect the government of

wrongdoing in a way that defies simple quantification. Citizens are de-

terred from bringing actions against the government by a complex and

subtle interplay among the legal, psychological, and political factors that

shape a citizen’s perception of governmental authority. Even a jaundiced

observer of government action can evince an enduring faith in government

honesty and forthrightness.**

57. When posed the question, “[hlow much of the time do you think you can trust the government

in Washington to do what is right—just about always, most of the time, or only some time?,” 53% of

Americans in 1984 answered “most of the time,” as opposed to 23% in 1980, and 27% in 1978.

Center for Political Studies, American National Election Studies (1981-1985) (unpublished study) (on

file with author). See also Clymer, Americans in Poll View Government More Confidently, N.Y.

Times, Nov. 19, 1984, at Al, col. 4 (reporting results of study). American citizens place far greater

faith in government than do citizens of other Western democracies. See Dionne, Government Trust:

Less in West Europe Than in U.S., N.Y. Times, Feb. 16, 1986, at 20, col. 1 (polls show that 49% of

Americans trust government in Washington to do what is right all or most of time, and only seven

percen: almost never trust it to do what is right, as opposed to far lower percentages in Western

Europe.). See generally Dalton, Taking the Right to Appeal (More or Less) Seriously, 95 Yauz L. J.

63, 95 n.111 (1985) (discussing personal nature of government-citizen relationship).

58. When asked the question, “{dJo you think that quite a few of the people running the govern-

ment are a little crooked, not very many are, or do you think hardly any of them are crooked at all?,”

64% of Americans in 1984 answered “not many” or “hardly any”, as opposed to 49% in 1980 and

53% in 1978. Center for Political Studies, supra, note 57.

A recent Gallup poll designed to assess the “honesty and ethical standards” of various professions

found that policemen ranked seventh of the twenty occupations tested. In response to the question,

“[hjow would you rate the honesty and ethical standards of [policemen]—very high, high, average,

low, or very low?,” 47% of the respondents answered high or very high, 41% said average, and only

10% answered low or very low. San Francisco Chron., Aug. 16, 1985, at 30, col. 1.

59.. See Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 391-95

(1971) (describing unique and extraordinary power of government officials).

60. See Allen v. United States, 588 F. Supp. 247, 343 (D. Utah 1984) (victim of government

atomic testing believed that government would not conduct testing unless it knew it was safe); H.

Bai, Justice Downwinp: THe Story oF AMERICA’S ATOMIC TESTING PROGRAM 56 (1986)

(describing how Utah citizens’ patriotism and faith in government inhibited their discovery that gov-

ernment atomic testing injured them); U.S. Commission ON WARTIME RELOCATION AND INTERN-

MENT OF CIVILIANS, PERSONAL JusTICZ DenieD 126 (1983) (social scientists believe that the Japa-

nese-Americans interned in concentration camps were deterred from bringing legal claims by

surprising super-patriotism they have labelled the “150% American Syndrome”).

61. As one federal judge remarked upon discovering that government attorneys had committed

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2. An Imbalance of Power

The imbalance of power between individual citizens and the govern-

ment is obvious.** The government’s superior position in part springs

from its clear advantage in resources. Much of the government’s power,

however, derives from its unique ability to coerce.

The expansion of the government’s provisions of goods and services in

the last two decades has given the government greater leverage over many

citizens.** A more dependent citizenry is more susceptible to government

coercion and less apt to challenge government action.

Even among citizens who do not rely on government programs, the

state’s coercive power can greatly inhibit the accumulation of information.

At times this coercive power arises from the legal prerogatives the govern-

ment can bring to the litigation process. No other defendant, for example,

can threaten potentially adverse informants or witnesses with prosecu-

tion.“ Particularly on the local level, the government can exert sufficient

pressure to stifle the flow of information to an injured citizen.“

what he believed to be fraud upon his court in a trial over a quarter century earlier:

[Ih is quite true that judged by modern insights I took a somewhat pristine view at the original

trial of the general integrity of government officials. . . . I suppose that I shall continue to do

so, despite the buffetings of Watergate, these proceedings, and other current disclosures.

Bulloch v. United Sunes, 95 F.R.D. 123, 143 (D. Utah 1982) (Christensen, J.) (government commit-

ted fraud on court in 1956 suit by concealing evidence relating to dangerousness of atomic testing),

vev'd, 721 F.2d 713 (10th Cir. 1983), aff'd en banc, 763 F.2d 1115 (10th Cir. 1985), cert. denied

106 S. Ct. 862 (1986). Those less intimate with litigation in the federal courts are likely to retain an

even greater continuing faith in government. See also Barrett v. United States, 689 F.2d 324, 326 (2d

Cir. 1982) (“Today's average citizen would doubtless be appalled, but probably not surprised, to learn

that in the early 1950's, while conducting a chemical warfare experiment, the United States Army

used certain individuals as test subjects.”), cert. denied sub nom. Cattell v. Barrett, 462 US. 1131

(1983).

62. This imbalance may be exaggerated in the concealment context. Those most apt to be the

victims of official concealment may be those least able to discover their claims. As Judge Weinstein

has observed:

[T]he law should take account of the fact that the people who bring these civil rights cases in

the federal courts often proceed pro se, are ignorant of the niceties of state and federal practice,

and lack the contacts with the legal profession that the more well-to-do and assured of our

society rely on to prevent having claims barred by the statute of limitations.

Singleton v. City of New York, 632 F.2d 185, 196 (2d Cir. 1980) (Weinstein, J., dissenting), cert.

denied, 450 U.S. 920 (1981).

The New , 73 Yare L. J. 733 (1964) (discussing of t )

64. See, ¢.g., Vest v. Bossard, 700 F.2d 600, 607 (10th Cir. 1983) (McKay, J., concurring) (local

officials sent two teenagers to state correctional school for failing to comply with prosecu-

tion, and threatened to prosecute a third for perjury if he recanted government fabricated accusation);

Barrett v. United States, 689 F.2d 324, 328 (2d Cir. 1982) (government threatened to prosecute ad-

verse witnesses under the Espionage Act in order to to cover up unauthorized chemical warfare test-

ing), cert. denied sub nom. Cattell v. Barrett, 462 U.S. 1131 (1983).

65. In Vest v. Bossard, 700 F.2d 600 (10th Cir. 1983), for example, a judge, prosecutor, county

attorney, and a probation officer wanted to force a local college professor out of town. First they

forced a probationary teenager to accuse him of sodomy. When despite the threat of prosecution for

1488

Government Cover-up

Even if they suspect government officials of wrongdoing, citizens may

be reluctant to make their suspicions known, fearing (sometimes quite

reasonably) that challenges to official wrongdoing will lead to retribution.

This is especially likely to be true on the local level, where the suspected

wrongdoer and the authority with whom one registers complaints may be

closely related if not one and the same. But even if the source of wrongdo-

ing is a distant federal government, plaintiffs may forestall inquiry out of

fear.

3. The Government Monopoly on Information

The government’s powers of coercion are supplemented by its ability to

keep material information secret. Unlike most defendants, the government

has legitimate justifications for secrecy that it can invoke for illegitimate

purposes. Only the government can thwart a civil suit for damages by

claiming it cannot disclose the identity of a witness because he is an in-

formant,®’ or avoid a court’s subpoena by claiming that disclosure would

endanger national security. State and local governments can make simi-

lar claims in connection with their police function.”

The difficulty of access to government information is compounded by

the fact that the government is often the only source of information about

events related to its wrongdoing. As a unique entity, often performing

tasks without competitors with whom its activities can be compared or

from whom information can be gleaned, the government has a special

perjury, the teenager recanted, the judge insisted that the accused professor plead guilty and spend six

months in the Veterans Hospital. To insure that the professor could not talk tw the recanter, the

conspirators placed the teenager under police surveillance for five years. Jd. at 607 (McKay, J.,

66. To take an extreme but illustrative example, empirical evidence suggests that the Japanese-

Americans interned in concentration camps during World War II did not challenge the legitimacy of

the government's actions until long after they were released because they feared that such a challenge

would return them to captivity. S. Fuxisuima & K. Iro, THe Errecrs of RELOCATION ON THE

MENTAL HEALTH OF JAPANESE-AMERICANS: EVALUATION OF THE LITERATURE AND RECOMMEN-

DATIONS, (presented to the United States Commission on Wartime Relocation, Papers of the Commis-

~ Part II 1983).

. See Bergman v. United States, 565 F. Supp. 1353, 1358-61 (W.D. Mich. 1983) (discussing

ites ‘of privilege and citing cases).

68. See, ¢.g., Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C. Cir. 1977) (request for informa-

tion); Barrett v. United States, 689 F.2d 324, 328 (2d Cir. 1982), cert. denied sub nom. Cattell v.

Barrett, 462 U.S. 1131 (1983) (subpoena).

69. See Hobson v. Wilson, 737 F.2d 1, 41 (D.C. Cir. 1985) (local police claimed law enforcement

considerations required them to keep information pertaining to alleged wrongdoing secret), cert. de-

nied sub nom. Brennan v. Hobson, 105 S. Ct. 1843 (1985); see also Bell v. Milwaukee, 746 F.2d

1205, 1216-22 (7th Cir. 1984) (discussing cover-up by Milwaukee police).

While the government's initial obligation to disclose under the Freedom of Information Act

(FOIA), 5 U.S.C. § 8552 (1982), is certainly greater than the pre-discovery duties of a private liti-

gant, once the government has reason to believe it has no disclosure obligations under the Act, it may

be more bold than a private litigant in its refusals to disclose. State governments may follow a similar

strategy under state analogs of FOIA.

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ability to suppress information completely. For example, for years the

government was the only party capable of gathering and analyzing infor-

mation about the danger of the radioactive fallout from the atomic testing

it conducted over Nevada and the Marshall Islands.7° In both locations,

the government was reluctant to test radiation levels; the tests it did con-

duct were incomplete, negligently prepared, or falsely interpreted.7* Had

the government been a private party, the plaintiffs not only would have

been more suspicious, but they also might have been able to seek assis-

tance from public authorities.”*

Finally, when information is technically available, even diligent plain-

tiffs may have difficulty obtaining it. Government information, particu-

larly data amassed by the federal government, is often distributed

throughout a vast bureaucracy, and available only to those who have the

time, money and expertise to locate it.7* While at least one court has ac-

knowledged that it “cannot impose an obligation on all citizens to initiate

a triennial request of the Government” to determine whether their rights

have been violated,”* another court suggested that the plaintiff's failure to

70. See Nitol v. United States, 7 Cl. Cr. 405, 410, 414 (1985) (discussing testing in Marshall

Islands); Bulloch v. United States, 95 F.R.D. 123, 144 (D. Utah 1982), rev'd, 21 F.2d F.24 713, aff'd en

banc, 763 F.2d 1115 (10th Cir. 1985), cert. denied, 106 S. Ce 862 (1986) (discussing testing in

Nevada); H. Batt, supra note 60, at 129-30, 197-98 (same).

The range of information over which the government wields a monopoly is not limited to the tech-

nologically esoteric. For example, until classified evidence became public, only the government could

know whether the government believed there was a military necessity for the wartime relocation

camps. See Hohri v. United States, 782 F.2d 227 (D.C. Cir. 1986) (tolling daim brought by Japa-

nese-Americans interned in American concentration camps during World War I). See generally P.

Inons, Justicz at War (1983) (discussing government cover-up of information about military

necessity).

71. See cases cited supra note 70. See also Stare of House Suscomm. On OVERSIGHT AND

INVESTIGATIONS OF THE ComM. ON INTERSTATE AND Forzicn Commence, 96TH Conc., 2p

Sess., “The Forcorran Guinea Pics”: A Reroat on THe Heatn Errects of Low-Lever

RADIATION SusTAINED as A Resutt of THE Nucizarn Wearons TestiInc Procram Conpucrep

BY THE Untrep States GoveRnMENT 22 (Comm. Print 1980) [hereinafter cited as House Sup-

ComMM. ON OVERSIGHT AND InvesTIGATIONS] (“the government falsely interpreted and reported ra-

diation rates so as to give an inaccurate estimate of the hazards [and] knowingly disregarded evi-

dence”); H. BALL, supra note 60, at 130, 197-98 (discussing Nevada testing).

72. The government's superior ability to conceal! information is subject to two important qualifica-

tions. First, government activity is likely to be subject to greater media scrutiny than is the activity of

a private party. Second, “government” is not monolithic. It is divided into at beast three levels of

authority—federal, state, and local—each of which are separated again into as many as three indepen-

dent branches. Any of these governmental units might be able to assist a citizen concerned that a

different governmental unit had concealed evidence of wrongdoing. That said, it should be noted that

governmental units can use their superior ability to suppress information to keep data from the press

or other governmental units. For example, the Atomic Energy Commission kept information about the

danger of atomic testing in Nevada secret despite the efforts of local newspapers, local government

officials, and high-level employees of the United States Department of Health, Education and Welfare

(HEW). See H. Bau, supra note 60 at 67-83 (local newspapers); House Suscomm. On Over-

SIGHT AND INVESTIGATIONS, supra note 71, at 6-7, 21 (state officials and HEW).

73. See Marcus, supra nove 1, at 095-097 (diecussing difficuky ef ecbtaining government

information).

74. Smith v. Nixon, 606 F.2d 1183, 1191 (D.C. Cir. 1979), cert. denied, 454 U.S. 912 (1981).

1490

Government Cover-up

submit an information request under federal and state freedom of infor-

mation acts started the limitations period.”* One court rejected as an “ag-

gravating factor” the fact that material government documents were dis-

persed in eighteen different archives in seven states.”®

B. The Government-Citizen Relationship in Federal Court

1. The Intangible Rights Doctrine

Placing the government-citizen relationship within the trusted defen-

dant standard would not require a radical recharacterization of the gov-

ernment-citizen relationship. Indeed, analyzing government concealment

under the trusted defendant standard would comport with the Founder’s

vision of the proper relationship between government and citizen. The

Lockean theory central to those who drafted the Constitution” envisioned

a government with a “fiduciary” duty to protect its citizens.”

While the Founders’ conception of the government-citizen relationship

has not been reflected consistently in the case law,” their view is reflected

in a line of criminal prosecutions strikingly analogous to the fraudulent

concealment context. In those prosecutions, federal courts have held gov-

ernment and quasi-government officials to a fiduciary duty that includes

the public’s “intangible” right to the official’s honest and faithful partici-

pation in government affairs.°° Under this doctrine, courts have imposed

75. Hauptmann v. Wilentz, 570 F. Supp. 351, 399 (D.N.J. 1983), aff'd, 770 F.2d 1070 (3d Cir.

1985).

76. Hohri v. United States, 586 F. Supp. 769, 791 (D.D.C. 1984), rev'd on other grounds, 782

F.2d 227 (D.C. Cir. 1986).

77. See G. Woop, THe CREATION OF THE AMERICAN RePusiic: 1776-1787, at 283, 289-90,

601 (1969) (discussing Locke’s influence).

78. See J. Locne, SECOND Treatise or GOVERNMENT § 156, at 88 (T.. Peardon ed. 1979) (1st.

ed. London 1690) (executive’s power is “fiduciary trust” which citizens have “placed in him for the

safety of the people”); id. § 149, at 84 (government's legislative power is “fiduciary power” or “trust”

citizens have reposed); id. § 171, at 97 (people have “express or tacit trust” that power delegated to

government “shall be employed for their good and the preservation of their property”); See also

Peardon, Introduction to J. Locke, Seconp Treatise Of GOVERNMENT, at xv (Locke believed

government owed fiduciary duty or duty of trust to people); see also Hohri v. United States, 782 F.2d

227, 256 (D.C. Cir. 1986) (the Founders “most certainly assumed that the leaders of this Republic

would act truthfully”).

79. See Ackerman v. United States, 340 U.S. 193, 198 (1950) (no fiduciary relationship between

government officer and naturalized citizen).

80. See, ¢.g., United States v. Margiotta, 688 F.2d 108, 120-23 (2d Cir. 1982) (quasi-public

official violated mail fraud statute by taking private interest in public project and by failing to meet

affirmative duty to disclose material information surrounding his activities), cert. denied, 461 U.S.

913 (1983); United States v. Mandel, 591 F.2d 1347, 1358 (4th Cir.) (governor violated mail fraud

statute by failing to disclose material information surrounding his interest in public project, and offer-

ing deliberately misleading statement to public body), aff'd en banc in relevant part, 602 F.2d 653

(1979), cert. denied, 445 U.S. 961 (1980); United States v. Brown, 540 F.2d 364, 374 (8th Cir. 1976)

(building commissioner’s acceptance of kickbacks violated mail fraud statute by denying public’s in-

tangible right to honest and faithful service); of. Coffee, supra note 23, at 143 (criticizing above

decisions for turning mail fraud statute into “ “Truth-in-Government’ Act”).

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upon a wide range of public officials a duty to disclose information about

their wrongdoing,” and have held that failure to disclose breaches the

official’s duty to the public.®* An official’s concealment is actionable under

the mail fraud statute* and under the common law.™

These decisions amount to a criminalization of fraudulent concealment

when committed to further individual rather than “official” wrongdoing.

Indeed, the term “fraudulent concealment” has been used to describe these

offenses.** The holdings are animated by the belief that the government

has a duty to be faithful to the trust that citizens have vested in it. As the

Second Circuit noted:

Justice Holmes once wrote that “[m]en must turn square corners

when they deal with the government.” It requires little imaginative

leap to conclude that individuals who in reality 0 or effect are the gov-

ernment owe a fiduciary duty to the citizenry.”

It takes an equally small imaginative leap to recognize that this principle

is as applicable in the tolling context as it is in criminal prosecutions. If a

government officer’s fraudulent concealment is sufficient to send him to

jail, government concealment should be sufficient to stop the statute of

limitations from running in a civil claim.

While no federal court has made this connection, the Supreme Court of

Illinois has applied the intangible-rights rationale in the tolling context.

In Chicago Park District v. Kenroy, Inc.," the court applied the trusted

defendant standard in a case brought by the City of Chicago against an

alderman. The Court held that the alderman owed a fiduciary duty to the

city, and held that his failure to disclose wrongdoing constituted fraudu-

lent concealment, tolling the limitations period.”

81. See Margiotta, 688 F.2d at 142 (Winter, J., dissenting) (the courts have brough: “virtually all

participants in government and politics under the rubric fiduciary”).

82. See, ¢.g., Mandel, 591 F.2d at 1363.

83. See cases cited supra note 80.

84. Mandel held:

a duty to disclose material information need not necessarily be based upon the existence of

some statute or regulation prescribing such a duty. Rather, the duty to disclose may exist

because of the relationship between the one possessing the material information and another

. So far as relevant in this case, the Governor of the State of Maryland is trustee for the

citizens and the State of Maryland and thus owes the normal fiduciary duties of a trustee, ¢g.,

honesty and loyalty.

591 F.2d at 1363

85. Mandel, 591 F.2d at 1355.

86. Margiotta, 688 F.2d at 124 (citations omitted).

67. 78 Ill. 2d $55, 402 N.E.2d 181 (1980).

88. Jd. at 563, 402 N.E.2d at 185 (“To hold that the City was obligated to search for the misfea-

sance of its duly elected public official, absent a prior indication of wrongdoing, would require it to

presume unfaithfulness on the part of its fiduciary.”).

1492

Government Cover-up

2. The Trusted Defendant Standard in Federal Court

The two federal courts that have considered the argument that the

trusted defendant standard should be applied to government-citizen rela-

tionships both refused to depart from the arm’s length standard.® Neither

court, however, appears to have understood the range of relationships to

which the trusted defendant standard applies. The courts did not apply

the factors generally used to determine the tolling standard.” Instead,

both courts apparently assumed that the trusted defendant standard ap-

plies only to strict fiduciary relationships®’ and based their holdings on

the grounds that the government is not the citizen’s fiduciary.”

In both instances, the refusal to adopt the trusted defendant standard

seems animated by an unfounded fear that to do so would expose the

government to an expansive range of new duties and liabilities.** Both

89. Hohri v. United States, 586 F. Supp. 769, 791-93 (D.D.C 1984), rev'd on other grounds,

782 F.2d 227 (D.C. Cir. 1986); Barrett v. Hoffman, 521 F. Supp. 307, 315 (S.D.N.Y. 1981), rev'd

on other grounds sub nom. Barrett v. United States, 689 F.2d 324 (2d Cir. 1982), cert. denied sub

nom. Cattel v. Barrett, 462 U.S. 1131 (1983). The Barrett holding was complicated, however, by the

fact that the court considered the duties that emanate from the government-citizen relationship in

conjunction with plaintiff's argument that those duties also emanate from the due process clause. Id.

at 314-15; see infra note 97 (discussing Barrett due process analysis).

Only in cases brought by Native Americans, to whom the government has a fiduciary duty imposed

by statute, have the courts wavered in their application of the arm’s length standard. See, ¢.g.,

Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238, 1249 (N.D. Cal. 1973)

(tolling statute of limitations).

90. See supra text accompanying notes 26-28.

91. Hohri, 586 F. Supp. at 791; Barrett, 521 F. Supp. at 315. The Hohri court showed its lack of

understanding of the types of relationships subsumed under the trusted defendant standard by ad-

dressing the question of whether the government-citizen relationship affected the tolling decision in its

discussion of whether the government was liable for damages caused by an alleged breach of fiduciary

duty. 586 F. Supp. at 792-93.

92. Hohri, 586 F. Supp. at 791-93; Barrett, 521 F. Supp. at 315; see also Smith v. Nixon, 606

F.2d 1183, 1190 (D.C. Cir. 1979) (commenting in dictum that no “formal” fiduciary relationship

existed between parties in Fitzgerald v. Seamans, 553 F.2d 220 (D.C. Cir. 1977), a middle level

Department of Defense employee and a White House official), cert. denied, 453 U.S. 912 (1981).

As additional support for its decision, the Barrett court cited its finding that the government is

subject to the same discovery rules and civil sanctions as any other litigant in the federal courts. 521

F. Supp. at 315. As a basis for refusing to apply the trusted defendant standard this reasoning is

flawed for two reasons. First, the validity of the statement itself is undermined by the very case relied

upon by Barrett to support it: NAACP, Western Region v. Hodgson, 57 F.R.D. 81 (D.D.C. 1972).

That case recognized the specialness of the government in its holding that the “paramount interests of

the Government in having justice done between litigants in the federal courts militates in favor of

requiring great effort on its part to produce any documents relevant to a fair determination of this

litigation.” Jd. at 83 (quoting Freeman v. Seligson, 405 F.2d 1326, 1337-38 (D.C. Cir. 1968)).

Second, the court’s reliance on discovery doctrine confuses the tolling decision’s concern with events

before suit is filed with the rules governing actions after a suit is filed. Discovery doctrine is not

relevant to whether the trusted defendant standard is applicable. See supra text accompanying notes

25-26.

93. The Hohri court considered the tolling argument in the context of a damages claim for breach

of fiduciary duty. See supra note 91. The Barrett court considered the tolling argument in the context

of plaintiff's claim that the government had a constitutional obligation to disclose its wrongdoing, see

infra note 97, and that the cover-up should give rise to a cause of action for damages under the Fifth

Amendment. Barrett, 521 F. Supp. at 315.

1493

The Yale Law Journal Vol. 95: 1477, 1986

courts’ rigid reliance on the arm’s length standard resulted in reversal on

appeal, where the circuit courts, without addressing the question of which

tolling standard should be applied, found ways nominally under the arm’s

length standard to reverse the trial courts’ holdings.™

III. CONSTITUTIONAL RIGHTS THREATENED BY GOVERNMENT

CONCEALMENT

An important additional reason to analyze government cover-up under

the trusted defendant standard is that in many instances use of the arm’s

length standard will deprive a litigant of his constitutionally protected

right of access to court. In Logan v. Zimmerman Brush Co.,™ the Su-

preme Court held that a cause of action is a species of property under the

due process clause.* Under the Logan analysis, government cover-up, by

depriving a citizen of his property interest in his cause of action, may

abridge his procedural right of access to court.”

94. Hohri v. United States, 782 F.2d 227, 253 (D.C. Cir. 1986) (tolling limitations period under

arm's length doctrine); Barrett v. United States, 68 689 F.2d 324, 330, 333 (2d Cir. 1982) (reversing

summary judgment in favor of reery 's length doctrine and due process analysis),

cert. denied sub. nom. Cattell v. Barrett, 462 U.S. 1131 (1983). For a discussion of courts’ tendency

to keep claims alive by making ad hoc slerans in the arm's gh docrig we Pore tx

ying notes 44-52. For a discussion of the Barrett court’s due process analysis, see infra note 97.

95. 455 U.S. 422 (1982) (Illinois procedure barring suit under state antidiscrimination statute

within limitations period violated constitutional right to due process).

96. Id. at 428.

97. The procedural due argument suggested here is similar to that set forth in Note, The

Feirncss ond Constitulionslity of Stetutes of Lanitations for Tonic Tert Suits, 96 Hanv. L. Rav.

1683, 1692-95 (1983) (statutes of repose governing toxic tort suits deprive plaintiffs of constitutional

right of access to court absent legislative quid pre quo).

Two additional constitutional theories support application of the trusted defendant standard to the

government. Both arguments proceed from the court's holding in Logan that a plaintiff has a constitu-

tionally significant property right in his cause of action. From this premise the first argument asserts

that government cover-up implicates constitutional rights in a way that concealment by other parties

does not. It concludes that the importance of safeguarding constitutional rights and applying uniform

constitutional standards, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcot-

ics, 403 U.S. 388, 409 (1971) (Harlan, J., concurring), mandates that courts employ the trusted

defendant standard because it is the only standard that accurately and consistently reflects the difficul-

ties a plaintiff confronts when faced with government concealment. See supra text accompanying notes

53-76.

The second alternative is that government cover-up constitutes a “privation of substantive due

substantive due process case masquerading as a case about procedural s: ghts. See, ¢.g.. The Supreme

Court, 1981 Term, 96 Harv. L. Rev. 62, 102-105 (1982). According to this line of reasoning, just

as Logan found that Illinois had taken Logan’s constitutionally imbued property right by depriving

him of his right to sue under the state’s antidiscrimination statute, so the government deprives a

citizen of his constitutional property right when it conceals his cause of action. This theory apparently

informed the decision in Barrett v. United States, 689 F.2d 324 (2d Cir. 1982), cert. denied sub nom.

Cattell v. Barrett, 462 U.S. 1131 (1983), where the court held that plaintiffs could bring an action

under § 1983 to recover the difference between the money they had received in a settlement and the

money they would have recovered had government concealment not inhibited their ability to take full

advantage of the legal claims available to them. Jd. at 331-33. The court's cursory treatment of this

issue, however, left the rationale and implications of its decision unclear. The major flaw in the

substantive due process argument is that it knows no bounds: It implies that each instance of govern-

1494

ET ET ee)

Government Cover-up

As the Logan court explained, the constitutional right of access to court

is premised on the principle that, “having made access to court an entitle-

ment or a necessity, the State may not deprive someone of that access

unless the balance of state and private interests favors the governmental

scheme.”** More specifically, the Court has held that a constitutional

right of access to court exists where, “absent a countervailing interest of

overriding significance,” a plaintiff seeks to vindicate a fundamental right

and the court is the only forum in which that right can be vindicated.”

In the fraudulent concealment context, a constitutional right of access

could be asserted by a plaintiff who seeks to vindicate his fundamental

interest in personal security and bodily integrity’*® jeopardized by a con-

cealed government tort where redress outside the courtroom is unavaila-

ble.*°? When government action threatens that fundamental interest and

the government can prove no overriding state interest, a constitutional

right of access should protect plaintiff's cause of action.

Logan and the access to court cases do not establish an exact formula

for deciding how the test balancing competing governmental and private

interests should be calculated. When a plaintiff alleges government con-

cealment, however, tolling doctrine itself provides the proper test. Consti-

tutional issues aside, the tolling decision always involves balancing com-

peting interests: The citizen’s interest in holding the government

ment cover-up would toll the statute of limitations, regardless of the identity of the plaintiff or the

character of the plaintiff's relationship with the government.

98. Logan, 455 U.S. 430 n.5.

99. Id. (quoting Boddie v. Connecticut, 401 U.S. 371, 377 (1971)). In Boddie, the court held that

a class of indigent women seeking to waive court fees in order to obtain divorces had a constitutional

right_of access to court. The Boddie holding subsequently was clarified by United States v. Kras, 409

U.S. 434 (1973), in which the court held that in order to assert a constitutional right of access to court

a plaintiff must seek to vindicate a fundamental interest, and the state must have exclusive control

over the “adjustment of [the] legal relationship.” Jd. at 445. In Logan, the access to court cases were

presented as an “analogous method of analysis” in support of the Court’s decision declaring unconsti-

tutional the Illinois procedure that denied plaintiff his right to bring suit under a ctate anti-

discrimination statute. Logan, 455 U.S. at 430 1.5.

100: See Ingraham v. Wright, 430 U.S. 651, 673 (1977) (“Among the historic liberties . . . pro-

tected [by the Due Process Clause] was a right to be free from, and to obtain judicial relief for,

unjustified intrusions on personal security.”); see also id. at nn.41-42; Note, supra note 97, at 1693

(fundamental interest in personal security and bodily integrity threatened by statutes of repose for

toxic tort suits).

101. Few prospective litiganis are able to secure a remedy outside the courtroom. Without a valid

remedy in court, an individual has no leverage with which to negotiate a private settlement. The only

remaining non-judicial forum in which the prospective litigant might secure relief is the legislature. It

is enormously difficult, however, to secure legislative relief for a specific injury sustained as a result of

government action. Even the citizens injured by government atomic testing in the 1950's, whose inju-

ries have been well-publicized, confirmed by a congressional report, and championed by state and

federal elected officials, ious ties tabi ee abet EP om aes BALL, supra note 60, at

130-32, 177 (discussing failed legislative attempts). Legislators “are wary of having a compensation

program turn into a continuing, disruptive, draining entitlement program for other groups in the

society who have also been injured and wrongfully killed due to government negligence.” Jd. at 177.

1495

The Yale Law Journal Vol. 95: 1477, 1986

responsible for its wrongdoing is weighed against the government’s inter-

est in being free of stale claims.’ The citizen’s constitutional right of

access to court requires an adjustment in how the balance is struck. In a

case involving government concealment, the trusted defendant standard

provides the adjustment needed to take account of that constitutional di-

mension. To apply the arm’s length test—in other words, not to adjust the

tolling standard—would ignore the constitutional issue. The balance

struck by the trusted defendant standard comports with the directive of the

constitutional test that “absent a countervailing interest of overriding sig-

nificance,”** a citizen should have access to a judicial forum in which to

assert his property right. In short, the trusted defendant standard test sat-

isfies the due process clause as well as traditional tolling principles.

IV. EMPLOYING THE TRUSTED DEFENDANT STANDARD

A. The Trusted Defendant Standard in Practice

Courts should account for the special relationship between government

and citizen and the citizen’s right of access to court when assessing claims

of government cover-up. Accordingly, in the absence of evidence showing

that a plaintiff deals with the government at arm’s length,"™ courts should

apply the trusted defendant standard when assessing claims by citizens

alleging government cover-up." The government should be under a duty

102. See supra text accompanying notes 1-11.

103. Legan, 455 US. at 430 25 (citation omitted) (stating test).

104. The trusted defendant standard should not automatically apply to all citizens alleging gov-

ernment concealment, nor should it be restricted to citizens. The standard has always found categori-

Se i, en ee ne Se,

that the standard would to most government-citizen relationships, and would not apply to suits

not brought by individual Lac sepmesne hang pa aoe een gaa

conn of Sa MNEE eadiias Widen 2 etc eetenton tad de oan. Greneattine an

other large organizations simply do not have a relationship with government which inspires the kind

of trust required for application of the trusted defendant standard. In addition, while few

tions can match the resources of the federal government, most organizations will not suffer from the

same debilitating disadvantages that face a citizen trying to uncover government wrongdoing.

ae ee

the government-business relationship, however, it should be presumed that the citizen's relationship

with the government places him at 2 grave disadvantage. For citizens for whom this is clearly not

true, the doctrine affords sufficient flexibility to deny application of the trusted defendart sandard.

See supra text accompanying note 29 (discussing standard’s flexibility).

While this distinction between citizens and corporations cannot be exact, in general it is consonant

with a presumption that parties who deal on a commercial basis are subject to a more exacting tolling

standard. See Developments, supra note 20, at 1217 (there is “an even stronger policy against requir-

sve at GHANIAN Ulciars cotaled ak tetuenn dealowen areeeentaaes basis”).

105. For a more elaborate discussion of the theory and mechanics of the trusted defendant stan-

dard, see supra text accompanying notes 18-29. Another possible substitute for the arm's length doc-

trine is the doctrine of estoppel. One federal court has held that the government's concealment estops

it from raising a limitations defense. Bell v. City of Milwaukee, 746 F.2d 1205, 1231 (7th Cir. 1984)

(applying Wisconsin law). Unlike the equitable tolling proposed in this Note, however, estoppel does

not provide a broadly applicable solution to the problem of government concealment. Estoppel is less

1496

Government Cover-up

to disclose its wrongdoing.’™ Its failure to disclose wrongdoing, or its false

denial of wrongdoing, should constitute fraudulent concealment, tolling

the statute of limitations. The limitations period should remain tolled un-

til the plaintiff discovers, or should have discovered, the concealed cause of

action.*® In the determination of when the citizen should have discovered

likely to find general approval, and would only apply to a limited spectrum of government conceal-

ment on a deliberately ad hoc basis.

While courts will toll actions against the government, see note 31 (citing cases), as a general princi-

ple courts are extremely reluctant to estop the government. See 2 K. Davis, ADMINISTRATIVE Law

TREATISE § 17.01, at 491-92 (1958) (“courts usually hold that the doctrine of equitable estoppel does

not apply to the government”); Note, Equitable Estoppel of the Government, 79 Coium. L. Rev.

551, 551 (1979) (“{t}raditionally, courts have not permitted estoppel of the government, no matter

how compelling the circumstances”); see also Heckler v. Community Health Services, 467 U.S. 51, 60

(1984) (Court is “hesitant . . . to say there are no cases” in which estoppel of government would be

appropriate) (emphasis omitted). The hostility to estoppel of government is based in large part on

tradition. K. Davis, supra, § 17.01, at 491. In addition, it has been argued that the general public

should not suffer for the misrepresentations or mistakes of its agents, and that estoppel of government,

by rendering the government incapable of enforcing the law, would undermine obedience to the rule

of law. See Community Health Services, 467 U.S. at 60; see also Note, supra, at 565-67 (possible

separation of powers problems involved in estoppel of government).

Another important advantage to the tolling approach is that whereas the doctrine of estoppel cannot

be used to assert a limitations defense in a suit under the Federal Tort Claims Act, toiling is proper.

See, ¢.g., Hohri v. United States, 586 F. Supp. 769, 786 n.22 (D.D.C. 1985), rev'd on other

782 F.2d 227 (D.C. Cir. 1986); Barrett v. Hoffman, 521 F. Supp. 307, 320 (S.D.N.Y. 1981), rev'd

on other grounds sub nom. Barrett v. United Siates, 689 F.2d 324 (2d Cir. 1982), cert. denied sub

nom. Cattell v. Barrett, 462 U.S. 1131 (1983). This is because the limitations period that governs the

FTCA claim requirement is jurisdictional, and parties cannot create jurisdiction by their actions.

Hohri, 586 F. Supp. at 786 n. 22; Barrett, 521 F. Supp. at 320 n. 17.

Finally, estoppel would only bar the government from asserting a limitations defense when it af-

firmatively denied or misrepresented its role in any wrongdoing. See Community Health Services, 467

US. at 59. The tolling approach advocated here also would apply to “self-concealing” torts. See supra

text accompanying notes 2-6. In addition, it would impose on government a duty of disclosure. See

infra text accompanying note 106.

106. See supra text accompanying note 20. It is important to emphasize that disclosure is not an

admission of liability; it simply prevides the plaintiff with full information about government activities

in which he may have a direct interest. Obviously, if the government is intent on concealing informa-

tion, or if it feeis that the costs of disclosure are too great, then the duty to disclose will become a

constructive duty, and will serve the purpose of tolling the limitations until a plaintiff knows or should

have known of any claim.

The nature of the wrongdoing and the number of citizens potentially at risk will affect the require-

ments of notice. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-45 (1°%9);

Spevack v. United States, 390 F.2d 977, 982-84 (Ct. Cl. 1968) (government had not put scientist on

notice of expropriation of his formula simply by declassifying evidence that they had used it, and

could only provide proper notice by making a public announcement reasonably calculatea to get his

attention). The standard established by Spevack should govern the government’s disclosure duties,

though it would be disingenuous to suggest that any standard of disclosure can do more than give

courts a guide to decisions that will turn on the particularized facts of individual cases.

107. tee Oak cae ale da ne haces Genes Se Oe as the

party seeking to toll the limitations period. See, ¢.g., Ramsey v. Culpepper, 738 F.2d 1092, 1098

(10th Cir. 1984); see also Gibson v. United States, 781 F.2d 1334, 1345 (9th Cir. 1986) (dismissing

allegation of fraudulent concealment in part because plaintiff failed to allege due diligence). But see

Hobson v. Wilson, 737 F.2d 1, 35 (D.C. Cir. 1984) (defendant has the burden of proving absence of

due diligence in the D.C. Circuit), cert. denied sub nom. Brennan v. Hobson, 105 S. Cu it 1843 (1985).

For this reason, and because the plaintiff is the party best able to bring evidence of his diligence

before the court, this Note advocates leaving the burden of proof with the plaintiff. The difficulties

facing a plaintiff confronting government concealment are better addressed through the less rigorous

standard of diligence required by the trusted defendant tolling standard.

1497

The Yale Law Journal Vol. 95: 1477, 1986

the government’s malfeasance, the citizen should be under no duty to mis-

| trust the government, or suspect it of wrongdoing. Finally, the application

| of the trusted defendant standard should not alter the legal relationship

| between government and citizen in any other way. Aside from determin-

ing when the limitations period begins to run, the trusted defendant stan-

dard should not impose on government any new duties, obligations, or

liabilities.?*

B. Achieving Larger Goals

Applying the trusted defendant standard to citizen-government relation-

ships will not only more accurately assess when the limitations period

} should run on a citizen’s suit, but will serve larger social purposes as well.

On a practical level, by increasing the likelihood that the government and

its officers will be held accountable for their torts, application of the stan-

dard will deter government wrongdoing, help compensate victims of gov-

ernment cover-up, and spread the loss of any harm incurred. -

More important, by compelling government disclosure and ceasing to

penalize citizens for their trust in government, the standard would

strengthen the relationship between government and citizen and foster

greater faith in government honesty and forthrightness. The law would

not only reflect the trust citizens place in government, but would en-

courage that trust.?*

Finally, holding government accountable for its wrongdoings preserves

the moral basis of the rule of law **° As Justice Brandeis wrote:

Our Government is the potent, the omnipresent teacher. For good or

for ill, it teaches the whole people by its example. . . . If the Gov-

The government, however, should have the burden of going forward with evidence that it has dis-

closed information sufficient to put a plaintiff on notice of his claim; the government is clearly the

party best able to bring this evidence before the court. See, ¢.g., Smith v. Nixon, 606 F.2d 1183, 1191

(D.C. Cir. 1979), cert. denied, 453 U.S. 912 (1981).

108. Under the proposed change, the statute of limitations would remain “a defense separate from

the denial of breach of duty.” United States v. Kubrick, 444 U.S. 111, 125 (1979).

109. As Professor Dalton has written:

At its best, the connection between the people and their government is rather like a personal

relationship. It is built on mutual need, mutual trust, give and take, shared responsibilities,

and an irrational element that looks a lot like love. It is that relationship more than (or over

and above) fear of punishment that makes people law-abiding, loyal, patriotic, and optimistic.

I am convinced that the relationship is deepened whenever a government takes the people into

its confidence, levels with them, and trusts them to make hard choices. Certainly the converse

is true, as both Viet Nam and Watergate vividly demonstrate.

Dalton, supra note 57, at 95 n.111.

110. P. Scxucx, Suinc Government: Crrizzen Remwepies ror OrriciaL Wroncs 23 (1983)

(discussing benefits of holding government liable for its torts).

1498

Government Cover-up

ernment becomes a lawbreaker, it breeds contempt for law; it invites

every man to become a law unto himself; it invites anarchy.”

When application of the arm’s length standard allows the government to

plead the statute of limitations successfully, the government’s legal victory

is society’s loss.***

CONCLUSION

The citizen’s trust in government and the government’s ability to con-

ceal information create difficulties for the citizen that are not accounted

for in the arm’s length tolling standard federal courts presently apply to

citizen allegations of government concealment. Analyzing citizen allega-

tions of government concealment under the trusted defendant standard

will enable those courts that have been sensitive to the unique characteris-

tics of government concealment to ground their tolling decisions in an es-

tablished legal doctrine in a manner that will provide guidance for future

courts and remedies for future plaintiffs. It will also make those courts

previously strict in the application of concealment doctrine, or blind to the

peculiar factors involved in government cover-up, take notice of the diffi-

culties facing a plaintiff seeking to uncover government-held and con-

cealed information. The law should not only reflect citizen trust in gov-

ernment, but should encourage that trust by fostering government honesty

and forthrightness.

111. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

112. Judge Jenkins, who presided over Allen v. United States, 588 F. Supp 247 (D. Utah 1984),

in which the statute of limitations was tolled because government concealment prevented discovery of

injuries suffered as a result of government atomic testing, has expressed a similar idea. In cases like

Allen, he said, the question is never will the government “win or lose. The government always wins

when justice is done. . . ” See Jenkins, Remarks Before Joint Meeting, 10 Uran B. J. 1, 4 (1982).

1499

REASON FOR GRANTING THE WRI

vo nn a te

The petition for Writ of Certiorari

should be granted in order to insure

equal rights for the citizen-soldier for

protection of his "Due Process" provided

by Government Regulation, Uniform Code of

Military Justice, and Federal Statutes;

and, safeguard his Constitutional

"Procedural Due Process" rights

guaranteed by the I, II, IV, V, VII, VIII

and XIV Amendments of the Constitution of

the United States of America; and,

reasons stated within this Petition; and,

specifically, statement of the case, with

attached addentum by Saul B. Shapiro.

Prevention of Conspiracies within

the Government and Military establishment

of illegal, wrongful, fraudulent, cover-

up actions concealed within classified

“SEQUESTERED” record; and,

The Courts vary in degrees of

decision(s) concerning "Due Process" by

jurisdiction and local customs--military

by nature of the service, custom,

traditions must be protected by the

Constitutional provisions they are swore

to defend, equally; without condoning

fraud, deception, concealnent, and

intentional violations of Federal Statute

and Government Regulations issued by the

Secretary of the Service(s) must be

complied with by the Military

establishment, and provisions by Statute

of the Congress directing service

Secretaries must also be complied with,

to include standard procedures, and

requirement to correct error and/or

injustice based on the-merits of the case

when error is discovered it is necessary

to correct an error or remove an

injustice as the intent of Congress, by a

board, is authorized to waiver-excuse

untimely filing in light of justice. Sec

131 of the Legislative Reorganization Act

of 1946 (60 Stat. 831: 2 U.S.C. 190g)--

Sec 1552, Title 10 U.S.C. codifies as

stated Sec 207, as amended.

The citizen's trust in government

and the government's ability to conceal

information create difficulties for the

citizen/military that are not accounted

for in the arm's length tolling standard

federal courts presently apply to citizen

allegations of government concealment.

Analyzing citizen/military allegations of

government concealment under the trusted

defendant standard will enable those

courts that have been sensitive to the

unique characteristics of government

concealment to ground their tolling

decisions in an established legal

doctrine in a manner that will provide

guidance for guture courts and remedies

for future plaintiffs. It will also make

those courts previously strict in the

application of concealment doctrine, or

blind to the peculiar factors involved in

government ccver-up, take notice of the

difficulties facing a plaintiff seeking

to uncover government-held and concealed

information. The law should not only

reflect citizen/military trust in govern-

ment, but should encourage that trust by

fostering government honesty and

forthrightness.

The U.S. Court of Appeals for the

Federal Circuit entered its judgment in

the case on Oct 20 1986. The jurisdiction

of the Court is invoked under Title 28

U.S.C. 1254(1), 2501, 5706; 10 U.S.C. Sec

1552; and Rule 17 of the United States

Supreme Court Rules.

ARGUMENT

Violation of AR 15-185 and U.S.C. 10

Sec 1552, basis of the "Secretary of each

armed for-ces" is provided authority to

correct records of his department where,

in his judgement, it is necessary to

correct an error or to remove an in-

justice is remedial in nature and imposes

on the Secretary the duty to properly

evaluate the nature -of any error or

injustice and, in addition to take such

corrective action es will appro-priately

and fully erase such error or compensate

such injustice. Caddington v. U.S. 5,

1959 178 F Supp, 604, 147 Ct Cl 629.

Also, see 1952 Op Atty Gen March 20. 10

U.S.C., Sec 1552 (APX P-235).

The Secretaries of the various

military services are bound by their own

regulations: Biddle v. U.S. 1968, 186 Ct

Cl 87 --disregarding this Court decision;

the Army violated their respective AR(s):

15-6, 15-185, 20-1, 135-173, and 135-215,

640-98 , by fraud and concealment.

In Allen v. U.S., 588 F. Supp 247 (D

Utah 1984), the "statute of limitations”

(SOL) is tolled because of government

concealment prevented discovery of

injuries suffered as 4 result of

government atomic testing, has expressed

a similar idea in applying this theory to

Petitioner's "IG" SEQUESTERED record.

In the case of Hohri v. U.S., 782

F.2d 227, 248 (DC Cir) (1986). The Hohri

Court considered the tolling argument in

the context of damages claimed for breach

of fiduciary duty. The Barrett court

considered the tolling argument in the

‘context of plaintiff's claim that the

government has a “constitutional obliga-

tion” to disclose its wrongdoing and that

the "cover-up" should give rise to a

cause of action for damages under the 5th

Amendment. Barrett 521 F Supp at 315.

It must be assumed that the

soldier's relationship with the military

places him at a grave disadvantage. The

arm's length doctrine of estoppel, one

the Court has been requested to impose,

has held that the government's conceal-

ment estop's applying equitable estoppel

by misrepresentation preventing it from

raising a limitation in defense. Bell v.

City of Milwaukee, 746 F.2d 1205, 1231

(7th Cir (1984) )

Pursuant to "Truth in Government

Act" a duty to disclose material

information need not necessarily be based

upon the existence of some statute or

regulation prescribing such 4 duty.

Rather, the duty to disclose may exist

because of the relationship between the

one possessing the material information

and another. So far as relevant in this

case, the IG of the Army had a specific

duty entrusted by AR 20-1 to advise

Petitioner upon completion of his

investigation to submit further

statements, etc. (See Par 16, TBIG 4, 16

. 35

Jul 1958) (APX P-235).

Petitioner was illegally, wrong-

fully, and fraudulently separated from

active duty by "SHAM" of the ADB “annual

screening AR 135-173" basis of "for

cause” recommendation of Inspector

General, Report of Investigation

findings, conclusion and recommendation

without "due process" afforded by

Respondent's Army Regulations: 15-1 (Incl

1, TAB “O"), 20-1 (App 15), 135-173 (App

4), 135-215 (App 12), 640-98 (App 25),

and Uniform Code of Military Justice; and

Federal Statute, U.S.C. 10, Sec 5706. See

Weiss. v. U.S. Ct Cl 205-65, FCR 2.5.

416,(1969). Biddle v. U.S. (Incl 1, TASB

"7").

Petitioner was denied his "“pro-

cedural due process" rights guaranteed by

Article VII, Constitution of the United

States, list, 4th, 5th, 7th, 8th and 14th

Amendments (APX P-218).

The ADB did illegally revoke

petitioner's “Indefinite Service

Agreement" on active duty, (APP-91)

without verification of the record, or

consideration of the most recent service

(contained in letter of 19 Mar 1960 (APP-

92) “held in abeyance” by PMG) and basis

of illegal "Brief" of TIGO dtd 13 May

1960, CMT 1 (App 206) in conspiracy with

TAGO (DESPER) and OPMG, containing

fraudulent information, prejudiced, and

"adverse" improper not qualified in

accordance with AR 640-98. (App 25).

Petitioner requests the Court to

recognize and accept the statement of the

case with attached “Verbatim Addendum"

Yale Law Journal by Mr. Saul B. Shiparo

“Amicus Curiae"; accordance with Gideon

v. Wainright"; and the following

supplemental cases:

In Allen v. U.S. 588 F Supp 247, 341

(D Utah 1984), Judge Jenkins, who

presided over Allen v. U.S. stated “the

statute of limitations" was tolled

because government concealment prevented

discovery of injuries as _a_ result of

goverment." --"the question is “never”

will the government win or lose. The

_ OE

government always wins when justice is

done.." See Jenkins remarks before joint

meeting, 10 Utah B.J. 1, 4, (1982).

In Doneghy v. U.S. 220 Ct Cl 4/20/79

(pg 635) 581-77 “validity of release

effect suspension of favorable personnel

action and recommendation of elimination

proceedings, this applies to Petitioner's

case as it effected his reinstatement,

volunteer Vietnam, and promotions.

In Furlong v. U.S. 153 Ct Cl 557-563

(1961) 153 Ct Cl 380 (Armed Service Key

13.5(5), 23.4(1). "A man might’ be

considered sufficiently fit to remain on

AD, but at the same time not qualified

for original appointment”.. same applies

Petitioner's separation 1 Oct 70. PEB

found questionably unfit “recommended”

continued AD disapproved by DA-DESPER.

Military Personnel must not be

barred from redress in civilian courts

for constitutional wrongs suffered in the

course of miltiary service.

In Chappell v. Wallace, 462 U.S.

297, 103 S. Ct 2362, 2366 (1983), this

Court clearly "provides for the review

and remedy of complaints and grievances

such as those presented by" petitioner.

Chappell v. Wallace directed grievances

by military personnel to be presented

pursuant to 10 U.S.C. Section 938 and

Section 1552(a) complaint and before the

BCMR, respectively, while recognizing

that decisions of the BCMR are subject to

judicial review.

This Court has never held, nor

do we now hold, that military

personnel are barred from all

redress in civilian courts

for constitutional wrongs suf-

fered in the course of military

service citing Brown v Glines,

444 U.S. 348 (1980); Parker v.

Levy, 417 U.S. 733 (1974);

Frontiero v. Richardson, 411

U.S. 677 (1973).

103 S.Ct. at 2367, See also, Harmon

v. Brucher, 355 U.S. 579, (1958).

In Secretary of the Navy v. Huff,

444 U.S. 453 (1980) (per curiam), this

Court, in deciding a case involving

allegations of denials of First and Fifth

Amendment rights to “expression,” noted

that:

(R]egulations in each Armed Service

were promulgated under a (DOD) di-

rective that "Advises commanders to

preserve servicemen's right to ex-

pression...to the maximum extent

possible, consistent with good order

and discipline and the national

security.” Brown v. Glines, ante,

at 355. A member of the service who

thinks that his commander has mis-

applied the regulations can seek

remedies within the service. Further-

more, the federal courts are open

to assure that, in applying the

regulations commanders do not abuse

the discretion necessarily vested

in then.

It is this assurance petitioner in-

vokes from the federal courts.

In Colson v. Bradley, S77 0 6.324

639(8th Cir. 1973), the court reversed

the district court for not issuing a writ

of mandamus where the plaintiff had

proven that his superiors had failed to

follow their own regulations in regard to

investigation of complaints, 477 F.2d at

641-2. The trial court, whose opinion

was relied upon below, recognized the

conflict with Colson v. Bradley.

Case law holds that the courts

should abstain from intervening into a

particular military decision until an

“appropriate time.” Turner v. Calloway,

371 F.Supp. 188, 192-3(D.D.C. 1974)). Two

of the remedies -courts have required

service members to exhaust is the Article

138 Complaint and BCMR ' proceedings.

Reviewability of BCMR proceedings has a

settled case history. Geyer v. Marsh, 782

F.2d 1351(5th Cir. 1986); Powell v.

Marsh. 560 F.Supp.636(D.D.C. 1983); Grieg

v. United States, 640 F.2d 1261 (Ct.Cl.

1981), cert. denied, 455 U.S. 907 (1982);

Heisig v. United States, 719 F.2d 1153

(Fed.Cir. 1983). There have been cases

where the service member atttempted to

pursue an Article 138 remedy, could not

so resolve the dispute, and successfully

sought review in federal court. Turner v.

Calloway, supra; MacKay v. Hoffman, 403

F.Supp. 467(D.D.C. 1975); Allen Vv.

Monger, 404 F.Supp. 1081 (N.D.Ca. 1975);

United States ex. rel. Berry Vv.

Commanding General, -411 F.2d 822 (5th

Cir. 1969); Mindes v. Seaman, 453 F.2d

197 (5th Cir. 1971). In several cases the

federal courts have simply afforded

plaintiff review of a complaint without

any discussion of the basis of

jurisdiction. Schatten v. United States,

419 F.2d 187 (6th Cir.1969); Colson v.

Bradley, supra; United States ex. rel.

Gaston Vv. Cassidy, 296 F.Supp.

986(E.D.N.Y. 1969).

The most thorough test, for

determining when federal courts will

review military decision, which has been

cited favorably by numerous

jurisdictions, and from which many

jurisdictions take guidance, is the

Mindes test. Mindes v. Seaman, 453 F.2d

197 (5th Cir. 1971). The Mindes test is

very protective of military autonomy in

that it requires that

a court should not review internal

military affairs in the absence of

(a) an allegation of the deprivation

of a constitutional right, or an

allegation that the military has

acted in violation of applicable

statutes or its own regulations,

and (b) exhaustion of available

intraservice remedies.

Mindes, 453, F.2d at 201. Once a

plaintiff meets both of these

requirements, the court must, under

Mindes, “examine the substance of that

allegation in light of the policy reasons

behind nonreview of military matters,”

including: (1) the nature and strength of

the plaintiff's challenge to the military

determination, (2) the potential injury

to the plaintiff if review is refused,

(3) the type and degree of anticipated

interference with the military function,

and (4) the extent to which the exercise

of military expertise or discretion is

involved.

Petitioner has met the requirements

of the Mindes test for judicial review of

constitutional violations in the _ pro-

ceedings. Petitioner has asserted that

the Complaint investigation violated the

due process clause of the Fifth Amendment

and that his and other's First Amendment

rights were violated, as well as

asserting that there have been statutory

and regulatory violations. Since peti-

tioner had exhausted his administrative

rememdies, he had satisfied both initial

Mindes requirements.

The basic nature of petitioner's

claims, as stated above, are important,

and since they involve the Army's own

regulations and Congressional legislation

protecting service members' rights, they

are fully capable of supporting judicial

review. Refusal to review perpetuates

"command influence,” retaliatory actions

and has an "adverse effect” on service

members' freedom of expression. A

decision in petitioner's favor will mean

that respondents’ must obey the law.

Petitioner's claims are that numerous

regulations and statutes promulgeted

specifically for the protection of

service members’ rights were violated in

the process of a service member invoking

their protection. Finally, petitioner is

not asking the courts to substitute their

expertise or discretion in a peculiarly

military matter, but to determine whether

his claims of violations in the

investigation were correct, a task which

courts are created to do. The factors in

the Mindes test balance in favor of

judicial review.

The test was used in Wallace v.

Chappell, 661 F.2d 729(9th Cir. 1981),

which this Court reversed on other

grounds, 462 U.S. 297, 103 S.Ct. 2363

(1983), with the recognition that the

plaintiffs in the case had not exhausted

their intraservice remedies, 103 S.Ct. at

2366. The Mindes test has survived the

decision of Chappell vv. Wallace in

several cases. Navas v. Gonzalex-Vales,

752 F.2d 765 (lst Cir. 1985);

Penagaricano v. Llenza, 747 F.2d 55(1ist

Cir. 1984); Trerice v. Pedersen, 769 F.2d

1398 (9th Cir. -1985); Gonzalex v.

Department of the Army, 718 F.2d 926 (9th

Cir. 1983); Williams v. Wilson, 762 F.2d

357 (4th cCir.1985), but cf. Bluth v.

Laird, 435 F.2d 1065 (4thcCir.1970)

(justicability of claimed violation of

military regulations assumed where

intraservice administrative remedies

exhausted.

The Federal Circuit, although it has

not applied the Mindes test itself, has

cited the case with approval but.

critized a district court for not

properly applying the test. Mairer v.

Orr, 754 F.2d 973, 984-5 (Fed. Cir.

1985). Eight circuits have accepted the

test. See, “Judicial Review of

Constitutional Claims Against the

Military,” 84 Col.L.Rev. 387(March 1984).

The Third Circuit rejected the Mindes

test in Dillard v. Brown, 652 F.2d 316

3rd Cir. 1981). Although the D.C. Circuit

has cited Mindes favorably, VanderMolen

v. Stetson, 571 F.2d 617(D.C. Cir. 1977),

the D.C. Circuit has used the more

traditional approach that "(i)t is the

duty of the federal courts to inquire

whether an action of a military agency

conforms to the law, or is instead

arbitrary, capricious, or contrary to the

statutes and regulation governing that

agency (citations omitted).” Dilley v.

Alexander, 603 F.2d 914, 920(D.C. Cir.

1979).

Petitioner seeks review .of_ the

proceedings in much the same way as did

the petitioner in this Court's recent

decision of Lindahl v. Office of

Personnel Management, — U.S. — 105

S.Ct 1620(1985). In Lindahl this Court

found that the Federal Circuit had erred

in concluding that judicial review was

unavailable "to determine whether ‘there

has been ae substantial departure from

important procedural rights, a miscon-

struction of the governing legislation,

or some like error going to the heart of

the administrative determination.'

Scroggins v. United States, 184 Ct.Cl. at

534, 397 F.3d at 297." Lindahl v. OPM,

supra, 105 S.Ct. at 1633.

SUMMARY

Granting issuance of a Writ is

justified to review the judgement and

opinion of the United States Appeals

Court for the Federal Circuit based on

the adoption of the United States Claims

Court decision-judgement granting

Respondent (Defendant) summary judgement

basis of untimely filing six year statute

of limitations without weighing the

evidence of fraud, concealment, violation

“procedural due process" guaranteed by

the UCMJ provisions and states herein,

Constitutional Rights, provided by lst,

4th, 5th, 7th, 8th and 14th Amendments;

and, applicable entitlement afforded by

Federal Statute, Army Regulations, UCMJ

Article 138, 139, and AR 15-6 based on IG

accusations of perjury, conduct unbecom-

ing an officer, inventory/equipment

shortages, etc. all unproven allegations

denied by evidence presented, thereby

Petitioner had every reasonable reason to

believe that he was completely ex-

honorated and the IG investigation was

resolved by higher headquarters in his

favor in light of sworn testimony 31 Jan,

7 Feb and 4 Nov 1959.

Records before a Board must be

before it properly, verified, and

consideration adverse information must be

QUALIFIED, AR 640-98. Refer 10 U.S.C. Sec

5706. -- “Government” will refer to

federal officials. Fraudulently concealed

federal actions against parties maybe

tolled according to traditional tolling

principles under the Supreme Court

holding in Holberg, 327 U.S. at 397; and,

Allen v. U.S., 588F. Supp 247 in which

the statute of limitations was tolled

because government concealment prevented

Giscovery of the injury as a result of

government.

CONCLUSIONS

Petitioner prays, for all the fore-

going reasons stated, that this Honorable

Supreme Court will grant the issuance of

a Writ of Certiorari to review the judge-

ment and opinion of the Appeals Court in

adopt(ion) of the Claims Court opinion,

that decision is based on incomplete

record, error of record, posing questions

of federal law and constitutionality, in

controversies by denial of Petitioner his

Constitutional "due process” guaranteed

by the Constitution of the U.S. Bill of

Rights; and, denial of "Deposition and

Discovery" by the Claims Court; and,

violation by the Military Department of

the Army of the properly appointed super-

intend(ed) Civilian Authority, i.e., The

Sec. of the Army Order of 13 May 1960;

Army Regulations, Federal Statutes, and

UCMJ.

DATED: 26 March 1987

BY: IRVIN JAMES HUNTZINGER

Pro Se

18 Tree Haven Lane

STAFFORD, VA 22554-9251

Tel. No.: (703) 752-1060

o¢

United States Court of Appeal

For the Federal Circuit

171 Madison Place, N.W.

Washington, D.C. 20439

Francis X. Gindhart Tel: 633-6550

Clerk Area Code 202

January 8, 1987

Mr. Irvin James Huntzinger

18 Tree Haven Lane

Stafford, VA 22554-9261

Dear Mr. Huntzinger:

Irvin James Huntzinger v. The United

States

Appeal No. 86-798

I am enclosing a copy of the order of

the court declining your suggestion for

rehearing in banc. The requests contained

in your letter of December 24, 1986, to

file an amendment to your original motion

for rehearing in banc and for permission

to submit a brief which was to have been

submitted by previous counsel have been

denied by the court.

In response to the questions that were

contained in your letter of December 11,

1986, I am enclosing a copy of the

court's rules. You can find the Federal

Rules of Appellate Procedure in the refer-

ence section of most local libraries.

APX P-001

The request for permission to resubmit

records returned by the Clerk of the

Claims Court contained in he WIRES

for rehearing in banc has als

denied.

Your motion to publish the cou

opinion was denied on December 23, 1986,

and it- is not necessary tor / yo to

resubmit your motion in typed form,

Very etais yours,

s/t Francis X. Gindhart

Encs.

Order declining petition for

rehearing in banc.

2. Rules

APX P-002

Note: This opinion will not be

published in a printed volume because it

does not add significantly to the body of

law and is not of widespread legal

interest. It is a public record. It is

not citable as precedent. The decision

will appear in tables published

periodically.

United States Court of Appeals for the

Federal Circuit

IRVIN JAMES HUNTZINGER, )

Appellant,

. 2 Si a No. 86-798

UNITED STATES,

Appellee.

DECIDED: October 20, 1986

Before MARKEY, Chief Judge, NEWMAN and

ARCHER, Circuit Judges. ARCHER, Circuit

Judge.

Appellant Huntzinger appeals the

summary judgment of the United States

Claims Court dismissing his complaint.

Huntzinger v. United States, 9 C1. Ct. 90

(1985). Huntzinger's complaint, filed

May 28, 1985, challenged his removal from

active service in the United States Army

in 1960 and sought reinstatement along

with back pay and other benefits.

APX P-003

The Claims Court held that Huntzinger's

claims were barred by the statute of

limitations. Finding no error in that

decision, we affirm on the basis of the

Claims Court's opinion.

APX P-004

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

IRVIN JAMES HUNTZINGER, ) RECEIVED

Appellant, ) NOV 26, 1986

JUS of Appeals

Vv. )For the Federal

) Circuit

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