# Petition for Writ of Certiorari — Huntzinger v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0224%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 483 U.S. 1022 ## Text EDITOR'S NOTE: THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. me | Spe " v pre 3 eTT ht h a. * me —) hs, BG xo 1 801 APR 2 war BEQSEPH, SPANK) In The ® CLERK es —s? Ai 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 - ee ii 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, iv 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. Vv 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. vi 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 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 + 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 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.....-- XV 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, Er CARTER v. UNITED STATES, No 127-66 I COOPER v. UNITED STATES, 178 Ct Cl ee ee ee oak 4 0 - 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 I 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. 2 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 3 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). II (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), 4 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 5 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 6 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). 7 STATEMENT OF THE CASE \ I "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.,-- 8 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 9 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. 10 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. \ 11 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. II --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. 12 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, 13 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. IV 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 15 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 16 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 17 & 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 18 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 19 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 20 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 21 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 22 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 23 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. 24 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 25 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 26 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 27 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 28 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. 1477 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 if Hi ui it | Fi 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). 1 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 1483 _—_— ——— —— = — 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 Le 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). 1485 The Yale Law Journal Vol. 95: 1477, 1986 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 1487 The Yale Law Journal Vol. 95: 1477, 1986 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. 1489 The Yale Law Journal | Vol. 95: 1477, 1986 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”). 1491 * The Yale Law Journal Vol. 95: 1477, 1986 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 process. This argument also can be based on Logan, which some ©. umentators characterize as a 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 c [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0224%3A1. Public record. Not legal advice.